U.S. Supreme Court Citizens to Preserve Overton Park v.
Volpe, 401
U.S. 402 (1971) Citizens to Preserve Overton Park v.
Volpe No. 1066 Argued January 11,
1971 Decided March 2, 1971 401
U.S. 402 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH
CIRCUIT Syllabus Under § 4(f) of the Department of Transportation Act of 1966 and
§ 138 of the Federal-Aid Highway Act of 1968, the Secretary of
Transportation may not authorize use of federal funds to finance
construction of highways through public parks if a "feasible and
prudent" alternative route exists. If no such route is available,
he may approve construction only if there has been "all possible
planning to minimize harm" to the park. Petitioners contend that
the Secretary has violated these statutes by authorizing a six-lane
interstate highway through a Memphis public park. In April, 1968,
the Secretary announced that he agreed with the local officials
that the highway go through the park; in September, 1969, the State
acquired the right-of-way inside the park; and in November, 1969,
the Secretary announced final approval, including the design, of
the road. Neither announcement of the Secretary was accompanied by
factual findings. Respondents introduced affidavits in the District
Court, indicating that the Secretary had made the decision and that
it was supportable. Petitioners filed counter affidavits and sought
to take the deposition of a former federal highway administrator.
The District Court and the Court of Appeals found that formal
findings were not required, and refused to order the deposition of
the former administrator. Both courts held that the affidavits
afforded no basis for determining that the Secretary exceeded his
authority. Held: 1. The Secretary's action is subject to judicial review pursuant
to § 701 of the Administrative Procedure Act. Pp. 401 U. S.
413 .

															(a) There is no indication here that Congress sought to limit or
prohibit judicial review. P. 401 U. S.
410 .

															(b) The exemption for action "committed to agency discretion"
does not apply, as the Secretary does have "law to apply," rather
than wide-ranging discretion. Pp. 401 U. S.
410 -413.

															2. Although, under § 706 of the Act, de novo review is
not required here, and the Secretary's approval of the route need
not Page 401 U. S. 403 meet the substantial evidence test, the reviewing court must
conduct a substantial inquiry and determine whether the Secretary
acted within the scope of his authority, whether his decision was
within the small range of available choices, and whether he could
have reasonably believed that there were no feasible alternatives.
The court must find that the actual choice was not "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law," and that the Secretary followed the necessary procedural
requirements. Pp. 401 U. S.
413 -416.

															3. Formal findings by the Secretary are not required in this
case. Pp. 401 U. S.
417 -419.

															(a) The relevant statutes do not require formal findings, and
there is no ambiguity in the Secretary's action. P. 401 U. S.
417 .

															(b) Although a regulation requiring formal findings was issued
after the Secretary had approved the route, a remand to him is not
necessary, as there is an administrative record facilitating full
and prompt review of the Secretary's action. Pp. 401 U. S.
417 -419.

															4. The case is remanded to the District Court for plenary review
of the Secretary's decision. Pp. 401 U. S.
419 -420.

															(a) The lower courts' review was based on litigation affidavits,
which are not the whole record, and are an inadequate basis for
review. P. 401 U. S.
419 .

															(b) In view of the lack of formal findings, the court may
require the administrative officials who participated in the
decision to give testimony explaining their action or require the
Secretary to make formal findings. P. 401 U. S.
420 .

															432 F.2d 1307, reversed and remanded.

															MARSHALL, J., wrote the opinion of the Court, in which BURGER,
C.J., and HARLAN, STEWART, WHITE, and BLACKMUN, JJ., joined. BLACK,
J., filed a separate opinion, in which BRENNAN, J., joined, post, p. 401 U. S. 421 .
BLACKMUN, J., filed a separate statement, post, p. 401 U. S. 422 .
DOUGLAS, J., took no part in the consideration or decision of this
case. Page 401 U. S. 404 Opinion of the Court by MR. JUSTICE MARSHALL, announced by MR.
JUSTICE STEWART.

															The growing public concern about the quality of our natural
environment has prompted Congress in recent years to enact
legislation [ Footnote 1 ]
designed to curb the accelerating destruction of our country's
natural beauty. We are concerned in this case with § 4(f) of the
Department of Transportation Act of 1966, as amended, [ Footnote 2 ] and § 18(a) of Page 401 U. S. 405 the Federal-Aid Highway Act of 1968, 82 Stat. 823, 23 U.S.C. §
138 (1964 ed., Supp. V) (hereafter § 138). [ Footnote 3 ] These statutes prohibit the Secretary of
Transportation from authorizing the use of federal funds to finance
the construction of highways through public parks if a "feasible
and prudent" [ Footnote 4 ]
alternative route exists. If no such route is available, the
statutes allow him to approve construction through parks only if
there has been "all possible planning to minimize harm" [ Footnote 5 ] to the park. Page 401 U. S. 406 Petitioners, private citizens as well as local and national
conservation organizations, contend that the Secretary has violated
these statutes by authorizing the expenditure of federal funds
[ Footnote 6 ] for the
construction of a six-lane interstate highway through a public park
in Memphis, Tennessee. Their claim was rejected by the District
Court, [ Footnote 7 ] which
granted the Secretary's motion for summary judgment, and the Court
of Appeals for the Sixth Circuit affirmed. [ Footnote 8 ] After oral argument, this Court granted a
stay that halted construction and, treating the application for the
stay as a petition for certiorari, granted review. [ Footnote 9 ] 400 U.S. 939. We now reverse the
judgment below and remand for further proceedings in the District
Court.

															Overton Park is a 342-acre city park located near the center of
Memphis. The park contains a zoo, a nine-hole municipal golf
course, an outdoor theater, nature trails, a bridle path, an art
academy, picnic areas, and 170 acres of forest. The proposed
highway, which is to be a six-lane, high-speed, expressway,
[ Footnote 10 ] will sever the
zoo from the rest of the park. Although the roadway will be
depressed below ground level except where it crosses a small creek,
26 acres of the park will be destroyed. The highway is to be a
segment of Interstate Highway I-40, part of the National System of
Interstate and Page 401 U. S. 407 Defense Highways. [ Footnote
11 ] I-40 will provide Memphis with a major east-west expressway
which will allow easier access to downtown Memphis from the
residential areas on the eastern edge of the city. [ Footnote 12 ]

															Although the route through the park was approved by the Bureau
of Public Roads in 1956 [ Footnote 13 ] and by the Federal Highway Administrator in
1966, the enactment of § 4(f) of the Department of Transportation
Act prevented distribution of federal funds for the section of the
highway designated to go through Overton Park until the Secretary
of Transportation determined whether the requirements of § 4(f) had
been met. Federal funding for the rest of the project was, however,
available; and the state acquired a right-of-way on both sides of
the park. [ Footnote 14 ] In
April, 1968, the Secretary announced that he concurred in the
judgment of local officials that I-40 should be built through the
park. And in September, 1969, the State acquired the right-of-way
inside Overton Park from the city. [ Footnote 15 ] Final approval for the project -- the route
as well as the design -- was not announced until November, 1969,
after Congress had reiterated in § 138 of the Federal-Aid Highway
Act Page 401 U. S. 408 that highway construction through public parks was to be
restricted. Neither announcement approving the route and design of
I-40 was accompanied by a statement of the Secretary's factual
findings. He did not indicate why he believed there were no
feasible and prudent alternative routes, or why design changes
could not be made to reduce the harm to the park.

															Petitioners contend that the Secretary's action is invalid
without such formal findings, [ Footnote 16 ] and that the Secretary did not make an
independent determination, but merely relied on the judgment of the
Memphis City Council. [ Footnote
17 ] They also contend that it would be "feasible and prudent"
to route I-40 around Overton Park either to the north or to the
south. And they argue that, if these alternative routes are not
"feasible and prudent," the present plan does not include "all
possible" methods for reducing harm to the park. Petitioners claim
that I-40 could be built under the park by using either of two
possible tunneling methods, [ Footnote 18 ] and they claim that, at a Page 401 U. S. 409 minimum, by using advanced drainage techniques, [ Footnote 19 ] the expressway could be
depressed below ground level along the entire route through the
park, including the section that crosses the small creek.

															Respondents argue that it was unnecessary for the Secretary to
make formal findings, and that he did, in fact, exercise his own
independent judgment, which was supported by the facts. In the
District Court, respondents introduced affidavits, prepared
specifically for this litigation, which indicated that the
Secretary had made the decision and that the decision was
supportable. These affidavits were contradicted by affidavits
introduced by petitioners, who also sought to take the deposition
of a former Federal Highway Administrator [ Footnote 20 ] who had participated in the
decision to route I-40 through Overton Park.

															The District Court and the Court of Appeals found that formal
findings by the Secretary were not necessary, and refused to order
the deposition of the former Federal Highway Administrator because
those courts believed that probing of the mental processes of an
administrative decisionmaker was prohibited. And, believing that
the Secretary's authority was wide, and reviewing courts' authority
narrow, in the approval of highway routes, the lower courts held
that the affidavits contained no basis for a determination that the
Secretary had exceeded his authority.

															We agree that formal findings were not required. But we do not
believe that, in this case, judicial review based solely on
litigation affidavits was adequate. Page 401 U. S. 410 A threshold question -- whether petitioners are entitled to any
judicial review -- is easily answered. Section 701 of the
Administrative Procedure Act, 5 U.S.C. § 701 (1964 ed., Supp. V),
provides that the action of "each authority of the Government of
the United States," which includes the Department of
Transportation, [ Footnote
21 ] is subject to judicial review except where there is a
statutory prohibition on review or where "agency action is
committed to agency discretion by law." In this case, there is no
indication that Congress sought to prohibit judicial review, and
there is most certainly no "showing of clear and convincing
evidence' of a . . . legislative intent" to restrict access to
judicial review. Abbott Laboratories v. Gardner, 387 U. S. 136 , 387 U. S. 141 (1967). Brownell v. We Shung, 352 U.
S. 180 , 352 U. S. 185 (1956). [ Footnote
22 ] Similarly, the Secretary's decision here does not fall within
the exception for action "committed to agency discretion." This is
a very narrow exception. [ Footnote 23 ] Berger, Administrative Arbitrariness and
Judicial Review, 65 Col.L.Rev. 55 (1965). The legislative history
of the Administrative Procedure Act indicates that it is applicable
in those rare instances where "statutes are drawn in such broad
terms that, in a given case, there is no law to apply." S.Rep. No.
752, 79th Cong., 1st Sess., 26 (1945). Page 401 U. S. 411 Section 4(f) of the Department of Transportation Act and § 138
of the Federal-Aid Highway Act are clear and specific directives.
Both the Department of Transportation Act and the Federal-Aid
Highway Act provide that the Secretary "shall not approve any
program or project" that requires the use of any public park
land

															"unless (1) there is no feasible and prudent alternative to the
use of such land, and (2) such program includes all possible
planning to minimize harm to such park. . . ."

															23 U.S.C. § 138 (1964 ed., Supp. V); 49 U.S.C. § 1653(f) (1964
ed., Supp. V). This language is a plain and explicit bar to the use
of federal funds for construction of highways through parks -- only
the most unusual situations are exempted.

															Despite the clarity of the statutory language, respondents argue
that the Secretary has wide discretion. They recognize that the
requirement that there be no "feasible" alternative route admits of
little administrative discretion. For this exemption to apply, the
Secretary must find that, as a matter of sound engineering, it
would not be feasible to build the highway along any other route.
[ Footnote 24 ] Respondents
argue, however, that the requirement that there be no other
"prudent" route requires the Secretary to engage in a wide-ranging
balancing of competing interests. They contend that the Secretary
should weigh the detriment resulting from the destruction of park
land against the cost of other routes, safety considerations, and
other factors, and determine on the basis of the importance that he
attaches to these other factors whether, on balance, alternative
feasible routes would be "prudent."

															But no such wide-ranging endeavor was intended. It is obvious
that, in most cases, considerations of cost, directness of route,
and community disruption will indicate that park land should be
used for highway construction Page 401 U. S. 412 whenever possible. Although it may be necessary to transfer
funds from one jurisdiction to another, [ Footnote 25 ] there will always be a smaller outlay
required from the public purse [ Footnote 26 ] when park land is used, since the public
already owns the land, and there will be no need to pay for
right-of-way. And since people do not live or work in parks, if a
highway is built on park land, no one will have to leave his home
or give up his business. Such factors are common to substantially
all highway construction. Thus, if Congress intended these factors
to be on an equal footing with preservation of park land, there
would have been no need for the statutes.

															Congress clearly did not intend that cost and disruption of the
community were to be ignored [ Footnote 27 ] by the Secretary. [ Footnote 28 ] But the very existence of the statutes
[ Footnote 29 ] indicates that
protection of park land was to be given paramount Page 401 U. S. 413 importance. The few green havens that are public parks were not
to be lost unless there were truly unusual factors present in a
particular case or the cost or community disruption resulting from
alternative routes reached extraordinary magnitudes. If the
statutes are to have any meaning, the Secretary cannot approve the
destruction of park land unless he finds that alternative routes
present unique problems.

															Plainly, there is "law to apply," and thus the exemption for
action "committed to agency discretion" is inapplicable. But the
existence of judicial review is only the start: the standard for
review must also be determined. For that, we must look to § 706 of
the Administrative Procedure Act, 5 U.S.C. § 706 (1964 ed., Supp.
V), which provides that a "reviewing court shall . . . hold
unlawful and set aside agency action, findings, and conclusions
found" not to meet six separate standards. [ Footnote 30 ] In all cases, Page 401 U. S. 414 agency action must be set aside if the action was "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law" or if the action failed to meet statutory, procedural, or
constitutional requirements. 5 U.S.C. §§ 706(2)(A), (B), (C), (D)
(1964 ed., Supp. V). In certain narrow, specifically limited
situations, the agency action is to be set aside if the action was
not supported by "substantial evidence." And in other equally
narrow circumstances, the reviewing court is to engage in a de
novo review of the action and set it aside if it was
"unwarranted by the facts." 5 U.S.C. §§ 706(2)(E), (F) (1964 ed.,
Supp. V).

															Petitioners argue that the Secretary's approval of the
construction of I-40 through Overton Park is subject to one or the
other of these latter two standards of limited applicability.
First, they contend that the "substantial evidence" standard of §
706(2)(E) must be applied. In the alternative, they claim that §
706(2)(F) applies, and that there must be a de novo review
to determine if the Secretary's action was "unwarranted by the
facts." Neither of these standards is, however, applicable.

															Review under the substantial evidence test is authorized only
when the agency action is taken pursuant to a rulemaking provision
of the Administrative Procedure Act itself, 5 U.S.C. § 553 (1964
ed., Supp. V), or when the agency action is based on a public
adjudicatory hearing. See 5 U.S.C. §§ 556, 557 (1964 ed.,
Supp. V). The Secretary's decision to allow the expenditure of
federal funds to build I-40 through Overton Park was plainly not an
exercise of a rulemaking function. See 1 K. Davis,
Administrative Law Treatise § 5.01 (1958). And the only hearing
that is required by either the Administrative Procedure Act or the
statutes regulating the distribution Page 401 U. S. 415 of federal funds for highway construction is a public hearing
conducted by local officials for the purpose of informing the
community about the proposed project and eliciting community views
on the design and route. 23 U.S.C. § 128 (1964 ed., Supp. V). The
hearing is nonadjudicatory, quasi -legislative in nature.
It is not designed to produce a record that is to be the basis of
agency action -- the basic requirement for substantial evidence
review. See H.R.Rep. No.1980, 79th Cong., 2d Sess.

															Petitioners' alternative argument also fails. De novo review of whether the Secretary's decision was "unwarranted by the
facts" is authorized by § 706(2)(F) in only two circumstances.
First, such de novo review is authorized when the action
is adjudicatory in nature and the agency factfinding procedures are
inadequate. And there may be independent judicial factfinding when
issues that were not before the agency are raised in a proceeding
to enforce nonadjudicatory agency action. H.R.Rep. No.1980, 79th
Cong., 2d Sess. Neither situation exists here.

															Even though there is no de novo review in this case and
the Secretary's approval of the route of I-40 does not have
ultimately to meet the substantial evidence test, the generally
applicable standards of § 706 require the reviewing court to engage
in a substantial inquiry. Certainly, the Secretary's decision is
entitled to a presumption of regularity. See, e.g., Pacific
States Box & Basket Co. v. White, 296 U.
S. 176 , 296 U. S. 185 (1935); United States v. Chemical Foundation, 272 U. S.
1 , 272 U. S. 14 -15
(1926). But that presumption is not to shield his action from a
thorough, probing, in-depth review.

															The court is first required to decide whether the Secretary
acted within the scope of his authority. Schilling v.
Rogers, 363 U. S. 666 , 363 U. S.
676 -677 (1960). This determination naturally begins with
a delineation of the scope of Page 401 U. S. 416 the Secretary's authority and discretion. L. Jaffe, Judicial
Control of Administrative Action 359 (1965). As has been shown,
Congress has specified only a small range of choices that the
Secretary can make. Also involved in this initial inquiry is a
determination of whether, on the facts, the Secretary's decision
can reasonably be said to be within that range. The reviewing court
must consider whether the Secretary properly construed his
authority to approve the use of park land as limited to situations
where there are no feasible alternative routes or where feasible
alternative routes involve uniquely difficult problems. And the
reviewing court must be able to find that the Secretary could have
reasonably believed that, in this case, there are no feasible
alternatives, or that alternatives do involve unique problems.

															Scrutiny of the facts does not end, however, with the
determination that the Secretary has acted within the scope of his
statutory authority. Section 706(2)(A) requires a finding that the
actual choice made was not "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C. §
706(2)(A) (1964 ed., Supp. V). To make this finding, the 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. Jaffe, supra, at 182. See McBee v.
Bomar, 296 F.2d 235, 237 (CA6 1961); In re Josephson, 218 F.2d 174, 182 (CA1 1954); Western Addition Community
Organization v. Weaver, 294 F.
Supp. 433 (ND Cal.1968). See also Wong Wing Hang v.
Immigration and Naturalization Serv., 360 F.2d 715, 719 (CA2
1966). 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. Page 401 U. S. 417 The final inquiry is whether the Secretary's action followed the
necessary procedural requirements. Here, the only procedural error
alleged is the failure of the Secretary to make formal findings and
state his reason for allowing the highway to be built through the
park.

															Undoubtedly, review of the Secretary's action is hampered by his
failure to make such findings, but the absence of formal findings
does not necessarily require that the case be remanded to the
Secretary. Neither the Department of Transportation Act nor the
Federal-Aid Highway Act requires such formal findings. Moreover,
the Administrative Procedure Act requirements that there be formal
findings in certain rulemaking and adjudicatory proceedings do not
apply to the Secretary's action here. See 5 U.S.C. §§
553(a)(2), 554(a) (1964 ed., Supp. V). And, although formal
findings may be required in some cases in the absence of statutory
directives when the nature of the agency action is ambiguous, those
situations are rare. See City of Yonkers v. United States, 320 U. S. 685 (1944); American Trucking Assns. v. United States, 344 U. S. 298 , 344 U. S. 320 (1953). Plainly, there is no ambiguity here; the Secretary has
approved the construction of I-40 through Overton Park, and has
approved a specific design for the project.

															Petitioners contend that, although there may not be a statutory
requirement that the Secretary make formal findings, and even
though this may not be a case for the reviewing court to impose a
requirement that findings be made, Department of Transportation
regulations require them. This argument is based on DOT Order
5610.1, [ Footnote 31 ] which
requires the Secretary to make formal Page 401 U. S. 418 findings when he approves the use of park land for highway
construction but which was issued after the route for I-40 was
approved. [ Footnote 32 ]
Petitioners argue that, even though the order was not in effect at
the time approval was given to the Overton Park project, and even
though the order was not intended to have retrospective effect the
order represents the law at the time of this Court's decision and
under Thorpe v. Housing Authority, 393 U.
S. 268 , 393 U. S.
281 -282 (1969), should be applied to this case.

															The Thorpe litigation resulted from an attempt to evict
a tenant from a federally funded housing project under
circumstances that suggested that the eviction was prompted by the
tenant's objections to the management of the project. Despite
repeated requests, the Housing Authority would not give an
explanation for its action. The tenant claimed that the eviction
interfered with her exercise of First Amendment rights, and that
the failure to state the reasons for the eviction and to afford her
a hearing denied her due process. After denial of relief in the
state courts, this Court granted certiorari

															to consider whether [the tenant] was denied due process by the
Housing Authority's refusal to state the reasons for her eviction
and to afford her a hearing at which she could contest the
sufficiency of those reasons.

															393 U.S. at 393 U. S.
272 .

															While the case was pending in this Court, the Department of
Housing and Urban Development issued regulations requiring Housing
Authority officials to inform tenants of the reasons for an
eviction and to give a tenant the opportunity to reply. The case
was then remanded to the state courts to determine if the HUD
regulations were applicable to that case. The state court held them
not to be applicable, and this Court reversed on the Page 401 U. S. 419 ground that the general rule is "that an appellate court must
apply the law in effect at the time it renders its decision." 393
U.S. at 393 U. S.
281 .

															While we do not question that DOT Order 5610.1 constitutes the
law in effect at the time of our decision, we do not believe that Thorpe compels us to remand for the Secretary to make
formal findings. [ Footnote
33 ] Here, unlike the situation in Thorpe, there has
been a change in circumstances -- additional right-of-way has been
cleared and the 26-acre right-of-way inside Overton Park has been
purchased by the State. Moreover, there is an administrative record
that allows the full, prompt review of the Secretary's action that
is sought without additional delay which would result from having a
remand to the Secretary.

															That administrative record is not, however, before us. The lower
courts based their review on the litigation affidavits that were
presented. These affidavits were merely " post hoc "
rationalizations, Burlington Truck Lines v. United States, 371 U. S. 156 , 371 U. S.
168 -169 (1962), which have traditionally been found to
be an inadequate basis for review. Burlington Truck Lines v.
United States, supra; SEC v. Chenery Corp., 318 U. S.
80 , 318 U. S. 87 (1943). And they clearly do not constitute the "whole record"
compiled by the agency: the basis for review required by § 706 of
the Administrative Procedure Act. See n 30, supra. Page 401 U. S. 420 Thus, it is necessary to remand this case to the District Court
for plenary review of the Secretary's decision. That review is to
be based on the full administrative record that was before the
Secretary at the time he made his decision. [ Footnote 34 ] But since the bare record may not
disclose the factors that were considered or the Secretary's
construction of the evidence, it may be necessary for the District
Court to require some explanation in order to determine if the
Secretary acted within the scope of his authority and if the
Secretary's action was justifiable under the applicable
standard.

															The court may require the administrative officials who
participated in the decision to give testimony explaining their
action. Of course, such inquiry into the mental processes of
administrative decisionmakers is usually to be avoided. United
States v. Morgan, 313 U. S. 409 , 313 U. S. 422 (1941). And where there are administrative findings that were made
at the same time as the decision, as was the case in Morgan, there must be a strong showing of bad faith or
improper behavior before such inquiry may be made. But here there
are no such formal findings, and it may be that the only way there
can be effective judicial review is by examining the decisionmakers
themselves. See Shaughnessy v. Accardi, 349 U.
S. 280 (1955).

															The District Court is not, however, required to make such an
inquiry. It may be that the Secretary can prepare formal findings
including the information required by DOT Order 5610.1 that will
provide an adequate explanation for his action. Such an explanation
will, to some extent, be a " post hoc rationalization," and
thus must be viewed critically. If the District Court decides Page 401 U. S. 421 that additional explanation is necessary, that court should
consider which method will prove the most expeditious so that full
review may be had as soon as possible. Reversed and remanded. MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.

															[ Footnote 1 ] See, e.g., The National Environmental Policy Act of
1969, 83 Stat. 852, 42 U.S.C. § 4321 et seq. (1964 ed.,
Supp. V); Environmental Education Act, 84 Stat. 1312, 20 U.S.C. §
1531 et seq. (1970 ed.); Air Quality Act of 1967, 81 Stat.
485, 42 U.S.C. § 1857 et seq. (1964 ed., Supp. V);
Environmental Quality Improvement Act of 1970, 84 Stat. 114, 42
U.S.C. §§ 4371-4374 (1970 ed.).

															[ Footnote 2 ]

															"It is hereby declared to be the national policy that special
effort should be made to preserve the natural beauty of the
countryside and public park and recreation lands, wildlife and
waterfowl refuges, and historic sites. The Secretary of
Transportation shall cooperate and consult with the Secretaries of
the Interior, Housing and Urban Development, and Agriculture, and
with the States in developing transportation plans and programs
that include measures to maintain or enhance the natural beauty of
the lands traversed. After August 23, 1968, the Secretary shall not
approve any program or project which requires the use of any
publicly owned land from a public park, recreation area, or
wildlife and waterfowl refuge of national, State, or local
significance as determined by the Federal, State, or local
officials having jurisdiction thereof, or any land from an historic
site of national, State, or local significance as so determined by
such officials unless (1) there is no feasible and prudent
alternative to the use of such land, and (2) such program includes
all possible planning to minimize harm to such park, recreational
area, wildlife and waterfowl refuge, or historic site resulting
from such use."

															82 Stat. 824, 49 U.S.C. § 1653(f) (1964 ed., Supp. V).

															[ Footnote 3 ]

															"It is hereby declared to be the national policy that special
effort should be made to preserve the natural beauty of the
countryside and public park and recreation lands, wildlife and
waterfowl refuges, and historic sites. The Secretary of
Transportation shall cooperate and consult with the Secretaries of
the Interior, Housing and Urban Development, and Agriculture, and
with the States in developing transportation plans and programs
that include measures to maintain or enhance the natural beauty of
the lands traversed. After the effective date of the Federal-Aid
Highway Act of 1968, the Secretary shall not approve any program or
project which requires the use of any publicly owned land from a
public park, recreation area, or wildlife and waterfowl refuge of
national, State, or local significance as determined by the
Federal, State, or local officials having jurisdiction thereof, or
any land from an historic site of national, State, or local
significance as so determined by such officials unless (1) there is
no feasible and prudent alternative to the use of such land, and
(2) such program includes all possible planning to minimize harm to
such park, recreational area, wildlife and waterfowl refuge, or
historic site resulting from such use."

															23 U.S.C.§ 138 (1964 ed., Supp. V).

															[ Footnote 4 ]

															49 U.S.C. § 1653(f) (1964 ed., Supp. V); 23 U.S.C. § 138 (1964
ed., Supp. V).

															[ Footnote 5 ] Ibid. [ Footnote 6 ] See 23 U.S.C. § 103

															[ Footnote 7 ]

															The case originated in the United States District Court for the
District of Columbia. On application of the Secretary of
Transportation, it was transferred to the United States District
Court for the Western District of Tennessee, which entered the
summary judgment.

															[ Footnote 8 ]

															432 F.2d 1307 (CA6 1970).

															[ Footnote 9 ]

															This Court ordered the case to be heard on an expedited
schedule.

															[ Footnote 10 ]

															The proposed right-of-way will be 250 to 450 feet wide, and will
follow the route of a presently existing, nonaccess bus route,
which carries occasional bus traffic along a 40- to 50-foot
right-of-way.

															[ Footnote 11 ] See 23 U.S.C. § 103(d) (1964 ed., Supp. V).

															[ Footnote 12 ]

															I-40 will also provide an express bypass for east-west traffic
through Memphis.

															[ Footnote 13 ]

															At that time, the Bureau of Public Roads was a part of the
Department of Commerce. The Department of Transportation Act, 49
U.S.C. § 1651 et seq. (1964 ed., Supp. V), which became
effective on April 1, 1967, transferred the Bureau to the new
Department of Transportation.

															[ Footnote 14 ]

															The Secretary approved these acquisitions in 1967 shortly after
the effective date of § 4(f).

															[ Footnote 15 ]

															The State paid the City $2,000,000 for the 26-acre right-of-way
and $206,000 to the Memphis Park Commission to replace park
facilities that were to be destroyed by the highway. The city of
Memphis has used $1,000,000 of these funds to pay for a new
160-acre park, and it is anticipated that additional park land will
be acquired with the remaining money.

															[ Footnote 16 ]

															Respondents argue that the only issue raised by petitioners'
pleadings is the failure of the Secretary to make formal findings.
But when petitioners' complaint is read in the revealing light of Conley v. Gibson, 355 U. S. 41 (1957), it is clear that petitioners have also challenged the
merits of the Secretary's decision.

															[ Footnote 17 ]

															Petitioners contend that former Federal Highway Administrator
Bridwell's account of an April 3, 1968, meeting with the Memphis
City Council given to the Senate Subcommittee on Roads of the
Senate Committee on Public Works supports this charge. See Hearings on Urban Highway Planning, Location, and Design before the
Subcommittee on Roads of the Senate Committee on Public Works, 90th
Cong., 1st and 2d Sess., pt. 2, pp. 478-480 (1968).

															[ Footnote 18 ]

															Petitioners argue that either a bored tunnel or a cut-and-cover
tunnel, which is a fully depressed route covered after
construction, could be built. Respondents contend that the
construction of a tunnel by either method would greatly increase
the cost of the project, would create safety hazards, and, because
of increases in air pollution, would not reduce harm to the
park.

															[ Footnote 19 ]

															Petitioners contend that adequate drainage could be provided by
using mechanical pumps or some form of inverted siphon. They claim
that such devices are often used in expressway construction.

															[ Footnote 20 ]

															Petitioners wanted to question former Highway Administrator
Bridwell. See n 17, supra. [ Footnote 21 ]

															In addition, the Department of Transportation Act makes the
Administrative Procedure Act applicable to proceedings of the
Department of Transportation. 49 U.S.C. § 1655(h) (1964 ed., Supp.
V).

															[ Footnote 22 ] See also Rusk v. Cort, 369 U.
S. 367 , 369 U. S.
379 -380 (1962).

															[ Footnote 23 ]

															The scope of this exception has been the subject of extensive
commentary. See, e.g., Berger, Administrative
Arbitrariness: A Synthesis, 78 Yale L.J. 965 (1969); Saferstein,
Nonreviewability: A Functional Analysis of "Committed to Agency
Discretion," 82 Harv.L.Rev. 367 (1968); Davis, Administrative
Arbitrariness is Not Always Reviewable, 51 Minn.L.Rev. 643 (1967);
Berger, Administrative Arbitrariness: A Sequel, 51 Minn.L.Rev. 601
(1967).

															[ Footnote 24 ] See 114 Cong.Rec.19915 (statement by Rep.
Holifield).

															[ Footnote 25 ] See n 15, supra. [ Footnote 26 ] See 114 Cong.Rec. 24037 (statement by Sen.
Yarborough).

															[ Footnote 27 ] See, e.g., S.Rep. No. 1340, 90th Cong., 2d Sess.,
18-19; H.R.Rep. No. 1584, 90th Cong., 2d Sess., 12.

															[ Footnote 28 ]

															The legislative history indicates that the Secretary is not to
limit his consideration to information supplied by state and local
officials but is to go beyond this information and reach his own
independent decision. 114 Cong.Rec. 24036-24037.

															[ Footnote 29 ]

															The legislative history of both § 4(f) of the Department of
Transportation Act, 49 U.S.C. § 1653(f) (1964 ed., Supp. V), and §
138 of the Federal-Aid Highway Act, 23 U.S.C. § 138 (1964 ed.,
Supp. V), is ambiguous. The legislative committee reports tend to
support respondents' view that the statutes are merely general
directives to the Secretary requiring him to consider the
importance of park land as well as cost, community disruption, and
other factors. See, e.g., S.Rep. No. 1340, 90th Cong., 2d
Sess., 19; H.R.Rep. No. 1584, 90th Cong., 2d Sess., 12. Statements
by proponents of the statutes as well as the Senate committee
report on § 4(f) indicate, however, that the Secretary was to have
limited authority. See, e.g., 114 Cong.Rec. 24033-24037;
S.Rep. No. 1659, 89th Cong., 2d Sess., 22. See also H.R.Conf.Rep. No. 2236, 89th Cong., 2d Sess., 25. Because of this
ambiguity, it is clear that we must look primarily to the statutes
themselves to find the legislative intent.

															[ Footnote 30 ]

															"To the extent necessary to decision and when presented, the
reviewing court shall decide all relevant questions of law,
interpret constitutional and statutory provisions, and determine
the meaning or applicability of the terms of an agency action. The
reviewing court shall -- "

															"(1) compel agency action unlawfully withheld or unreasonably
delayed; and"

															"(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;"

															"(B) contrary to constitutional right, power, privilege, or
immunity;"

															"(C) in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right;"

															"(D) without observance of procedure required by law;"

															"(E) unsupported by substantial evidence in a case subject to
sections 556 and 557 of this title or otherwise reviewed on the
record of an agency hearing provided by statute; or"

															"(F) unwarranted by the facts to the extent that the facts are
subject to trial de novo by the reviewing court."

															"In making the foregoing determinations, the court shall review
the whole record or those parts of it cited by a party, and due
account shall be taken of the rule of prejudicial error."

															5 U.S.C. § 706 (1964 ed., Supp. V).

															[ Footnote 31 ]

															The regulation was promulgated pursuant to Executive Order
11514, dated March 5, 1970, 35 Fed.Reg. 4247, which instructed all
federal agencies to initiate procedures needed to direct their
policies and programs toward meeting national environmental
goals.

															[ Footnote 32 ]

															DOT Order 5610.1 was issued on October 7, 1970.

															[ Footnote 33 ]

															Even if formal findings by the Secretary were mandatory, the
proper course would be to remand the case to the District Court,
directing that court to order the Secretary to make formal
findings. See R. Robertson & F. Kirkham, Jurisdiction
of the Supreme Court of the United States § 446, p. 929 (R. Wolfson
& P. Kurland ed.1951). of course, the District Court is not
prohibited from remanding the case to the Secretary. See
infra at 401 U. S.
420 .

															[ Footnote 34 ]

															The Solicitor General now urges that, in order to avoid
additional delay, the proper course is to remand the case to the
District Court for review of the full administrative record.

															Separate opinion of MR. JUSTICE BLACK, with whom MR. JUSTICE
BRENNAN joins.

															I agree with the Court that the judgment of the Court of Appeals
is wrong, and that its action should be reversed. I do not agree
that the whole matter should be remanded to the District Court. I
think the case should be sent back to the Secretary of
Transportation. It is apparent from the Court's opinion today that
the Secretary of Transportation completely failed to comply with
the duty imposed upon him by Congress not to permit a federally
financed public highway to run through a public park

															"unless (1) there is no feasible and prudent alternative to the
use of such land, and (2) such program includes all possible
planning to minimize harm to such park. . . ."

															23 U.S.C. § 138 (1964 ed., Supp. V); 49 U.S.C. § 1653(f) (1964
ed., Supp. V). That congressional command should not be taken
lightly by the Secretary or by this Court. It represents a solemn
determination of the highest lawmaking body of this Nation that the
beauty and health-giving facilities of our parks are not to be
taken away for public roads without hearings, factfindings, and
policy determinations under the supervision of a Cabinet officer --
the Secretary of Transportation. The Act of Congress, in connection
with other federal highway aid legislation, [ Footnote 2/1 ] it seems to me, Page 401 U. S. 422 calls for hearings -- hearings that a court can review, hearings
that demonstrate more than mere arbitrary defiance by the
Secretary. Whether the findings growing out of such hearings are
labeled "formal" or "informal" appears to me to be no more than an
exercise in semantics. Whatever the hearing requirements might be,
the Department of Transportation failed to meet them in this case.
I regret that I am compelled to conclude for myself that, except
for some too-late formulations, apparently coming from the
Solicitor General's office, this record contains not one word to
indicate that the Secretary raised even a finger to comply with the
command of Congress. It is our duty, I believe, to remand this
whole matter back to the Secretary of Transportation for him to
give this matter the hearing it deserves in full good faith
obedience to the Act of Congress. That Act was obviously passed to
protect our public parks from forays by roadbuilders except in the
most extraordinary and imperative circumstances. [ Footnote 2/2 ] This record does not demonstrate the
existence of such circumstances. I dissent from the Court's failure
to send the case back to the Secretary, whose duty has not yet been
performed.

															[ Footnote 2/1 ] See 23 U.S.C. § 128 (1964 ed., Supp. V) and regulations
promulgated thereunder, 34 Fed.Reg. 727-730 (1969).

															[ Footnote 2/2 ] See also Named Individual Members of the San Antonio
Conservation Society v. Texas Highway Department, 400 U.
S. 968 , 972 (1970) (dissents from the denial of
certiorari).

															MR. JUSTICE BLACKMUN.

															I fully join the Court in its opinion and in its judgment. I
merely wish to state the obvious: (1) The case comes to this Court
as the end product of more than a decade of endeavor to solve the
interstate highway problem at Memphis. (2) The administrative
decisions under attack here are not those of a single Secretary;
some were made by the present Secretary's predecessor and, before
him, by the Department of Commerce's Bureau of Public Page 401 U. S. 423 Roads. (3) The 1966 Act and the 1968 Act have cut across former
methods, and here have imposed new standards and conditions upon a
situation that already was largely developed.

															This undoubtedly is why the record is sketchy and less than one
would expect if the project were one which had been instituted
after the passage of the 1966 Act.

Summary: The Supreme Court ruled that the Secretary of Transportation's decision to approve the construction of a highway through a public park is subject to judicial review under the Administrative Procedure Act. The Court found that the Secretary's action was not exempt from review and that formal findings by the Secretary were not required in this case. The Court also set out the scope of judicial review, stating that the reviewing court must determine whether the Secretary acted within the scope of his authority and followed the necessary procedural requirements. The case was sent back to the lower courts for further review.


U.S. Supreme Court Marchetti v. United States, 390 U.S.
39 (1968) Marchetti v. United
States No. 2 Argued January 17-18,
1967 Reargued October 10,
1967 Decided January 29,
1968 390 U.S.
39 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT Syllabus Petitioner was convicted for conspiring to evade payment of the
occupational tax relating to wagers imposed by 26 U.S.C. § 4411,
for evading such payment, and for failing to comply with § 4412,
which requires those liable for the occupational tax to register
annually with the Internal Revenue Service and to supply detailed
information for which a special form is prescribed. Under other
provisions of the interrelated statutory system for taxing wagers,
registrants must "conspicuously" post at their business places or
keep on their persons stamps showing payment of the tax; maintain
daily wagering records, and keep their books open for inspection.
Payment of the occupational taxes is declared not to exempt persons
from federal or state laws which broadly proscribe wagering, and
federal tax authorities are required by § 6107 to furnish
prosecuting officers lists of those who have paid the occupational
tax. Petitioner, whose alleged wagering activities subjected him to
possible state or federal prosecution, contended that the statutory
requirements to register and to pay the occupational tax violated
his privilege against self-incrimination. The Court of Appeals
affirmed, relying on United States v. Kahriger, 345 U. S. 22 , and Lewis v. United States, 348 U. S. 419 ,
which held the privilege unavailable in a situation like the one
here involved. Held: 1. The recognized principle that taxes may be imposed upon
unlawful activities is not at issue here. P. 390 U. S.
44 .

															2. Petitioner's assertion of his Fifth Amendment privilege
against self-incrimination barred his prosecution for violating the
federal wagering tax statutes. Pp. 390 U. S.
48 -61.

															(a) All the requirements for registration and payment of the
occupational tax would have had the direct and unmistakable
consequence of incriminating petitioner. Pp. 390 U. S.
48 -49.

															(b) Petitioner did not waive his constitutional privilege by
failing to assert it when the tax payments were due. Pp. 50-51.

															(c) United States v. Kahriger, supra, Lewis v. United
States, supra, both pro tanto overruled. Pp. 390 U. S.
50 -54. Page 390 U. S. 40 (d) The premises supporting Shapiro v. United States, 335 U. S. 1 ( viz., that the records be analogous to public documents
and of a kind which the regulated party has customarily kept, and
that the statutory requirements be essentially regulatory, rather
than aimed at a particular group suspected of criminal activities),
do not apply to the facts of this case, and therefore Shapiro's "required records" doctrine is not controlling.
Pp. 390 U. S.
55 -57.

															(e) Permitting continued enforcement of the registration and
occupational tax provisions by imposing restrictions against the
use by prosecuting authorities of information obtained thereunder
might improperly contravene Congress' purpose in adopting the
wagering taxes and impede enforcement of state gambling laws. Pp. 390 U. S.
58 -60.

															352 F.2d 848, reversed.

															MR. JUSTICE HARLAN delivered the opinion of the Court.

															Petitioner was convicted in the United States District Court for
the District of Connecticut under two indictments which charged
violations of the federal wagering tax statutes. The first
indictment averred that petitioner and others conspired to evade
payment of the annual occupational tax imposed by 26 U.S.C. § 4411.
The second indictment included two counts: the first Page 390 U. S. 41 alleged a willful failure to pay the occupational tax, and the
second a willful failure to register, as required by 26 U.S.C. §
4412, before engaging in the business of accepting wagers.

															After verdict, petitioner unsuccessfully sought to arrest
judgment, in part on the basis that the statutory obligations to
register and to pay the occupational tax violated his Fifth
Amendment privilege against self-incrimination. The Court of
Appeals for the Second Circuit affirmed, 352 F.2d 848, on the
authority of United States v. Kahriger, 345 U. S.
22 , and Lewis v. United States, 348 U.
S. 419 .

															We granted certiorari to reexamine the constitutionality under
the Fifth Amendment of the pertinent provisions of the wagering tax
statutes, and more particularly to consider whether Kahriger and Lewis still have vitality. [ Footnote 1 ] 383 U.S. 942. For reasons
which follow, we have Page 390 U. S. 42 concluded that these provisions may not be employed to punish
criminally those persons who have defended a failure to comply with
their requirements with a proper assertion of the privilege against
self-incrimination. The judgment below is accordingly reversed. I The provisions in issue here are part of an interrelated
statutory system for taxing wagers. The system is broadly as
follows. Section 4401 of Title 26 imposes upon those engaged in the
business of accepting wagers an excise tax of 10% on the gross
amount of all wagers they accept, including the value of chances
purchased in lotteries conducted for profit. Parimutuel wagering
enterprises, coin-operated devices, and state-conducted sweepstakes
are expressly excluded from taxation. 26 U.S.C. § 4402 (1964 ed.,
Supp. II). Section 4411 imposes in addition an occupational tax of
$50 annually, both upon those subject to taxation under § 4401 and
upon those who receive wagers on their behalf.

															The taxes are supplemented by ancillary provisions calculated to
assure their collection. In particular, § 4412 requires those
liable for the occupational tax to register each year with the
director of their local internal revenue district. The registrants
must submit Internal Revenue Service Form 11-C, [ Footnote 2 ] and upon it must provide their
residence and business addresses, must indicate whether they are
engaged in the business of accepting wagers, and must list the
names and addresses of their agents and employees. The statutory
obligations to register Page 390 U. S. 43 and to pay the occupational tax are essentially inseparable
elements of a single registration procedure; [ Footnote 3 ] Form 11-C thus constitutes both the
application for registration and the return for the occupational
tax. [ Footnote 4 ]

															In addition, registrants are obliged to post the revenue stamps
which denote payment of the occupational tax "conspicuously" in
their principal places of business, or, if they lack such places,
to keep the stamps on their persons, and to exhibit them upon
demand to any Treasury officer. 26 U.S.C. § 6806(c). They are
required to preserve daily records indicating the gross amount of
the wagers as to which they are liable for taxation, and to permit
inspection of their books of account. 26 U.S.C. §§ 4403, 4423.
Moreover, each principal internal revenue office is instructed to
maintain for public inspection a listing of all who have paid the
occupational tax, and to provide certified copies of the listing
upon request to any state or local prosecuting officer. 26
U.S.C. Page 390 U. S. 44 § 6107. Finally, payment of the wagering taxes is declared not
to "exempt any person from any penalty provided by a law of the
United States or of any State for engaging" in any taxable
activity. 26 U.S.C. § 4422. II The issue before us is not whether the United States may tax
activities which a State or Congress has declared unlawful. The
Court has repeatedly indicated that the unlawfulness of an activity
does not prevent its taxation, and nothing that follows is intended
to limit or diminish the vitality of those cases. See, e.g., 72 U. S. 5
Wall. 462. The issue is, instead, whether the methods employed by
Congress in the federal wagering tax statutes are, in this
situation, consistent with the limitations created by the privilege
against self-incrimination guaranteed by the Fifth Amendment. We
must for this purpose first examine the implications of these
statutory provisions.

															Wagering and its ancillary activities are very widely prohibited
under both federal and state law. Federal statutes impose criminal
penalties upon the interstate transmission of wagering information,
18 U.S.C. § 1084; upon interstate and foreign travel or
transportation in aid of racketeering enterprises, defined to
include gambling, 18 U.S.C. § 1952; upon lotteries conducted
through use of the mails or broadcasting, 18 U.S.C. § § 1301-1304,
and upon the interstate transportation of wagering paraphernalia,
18 U.S.C. § 1953.

															State and local enactments are more comprehensive. The laws of
every State, except Nevada, include broad prohibitions against
gambling, wagering, and associated activities. [ Footnote 5 ] Every State forbids, with essentially
minor Page 390 U. S. 45 and carefully circumscribed exceptions, lotteries. [ Footnote 6 ] Even Nevada, which permits
many forms of gambling, retains criminal penalties upon lotteries
and certain other wagering Page 390 U. S. 46 activities taxable under these statutes. Nev.Rev.Stat. §§
293.603, 462.010 462.080, 465.010 (1957).

															Connecticut, in which petitioner allegedly conducted his
activities, has adopted a variety of measures for the punishment of
gambling and wagering. It punishes "[a]ny person, whether as
principal, agent or servant, who owns, possesses, keeps, manages,
maintains or occupies" premises employed for purposes of wagering
or pool selling. Conn.Gen.Stat.Rev. § 5295 (1958). It imposes
criminal penalties upon any person who possesses, keeps, or
maintains premises in which policy playing occurs, or lotteries are
conducted, and upon any Page 390 U. S. 47 person who becomes the custodian of books, property, appliances,
or apparatus employed for wagering. Conn.Gen.Stat.Rev. § 53-298
(1958). See also §§ 53-273, 53-290, 53-293. It provides
additional penalties for those who conspire to organize or conduct
unlawful wagering activities. Conn.Gen.Stat.Rev. § 5197 (1958).
Every aspect of petitioner's wagering activities thus subjected him
to possible state or federal prosecution. By any standard, in
Connecticut and throughout the United States, wagering is "an area
permeated with criminal statutes," and those engaged in wagering
are a group "inherently suspect of criminal activities." Albertson v. SACB, 382 U. S. 70 , 382 U. S.
79 .

															Information obtained as a consequence of the federal wagering
tax laws is readily available to assist the efforts of state and
federal authorities to enforce these penalties. Section 6107 of
Title 26 requires the principal internal revenue offices to provide
to prosecuting officers a listing of those who have paid the
occupational tax. Section 6806(c) obliges taxpayers either to post
the revenue stamp "conspicuously" in their principal places of
business, or to keep it on their persons, and to produce it on the
demand of Treasury officers. Evidence of the possession of a
federal wagering tax stamp, or of payment of the wagering taxes,
has often been admitted at trial in state and federal prosecutions
for gambling offenses; [ Footnote
7 ] such evidence has doubtless proved useful even more
frequently to lead prosecuting authorities to other evidence upon
which convictions have subsequently Page 390 U. S. 48 been obtained. [ Footnote 8 ]
Finally, we are obliged to notice that a former Commissioner of
Internal Revenue has acknowledged that the Service "makes
available" to law enforcement agencies the names and addresses of
those who have paid the wagering taxes, and that it is in "full
cooperation" with the efforts of the Attorney General of the United
States to suppress organized gambling. Caplin, The Gambling
Business and Federal Taxes, 8 Crime & Delin. 371, 372, 377.

															In these circumstances, it can scarcely be denied that the
obligations to register and to pay the occupational tax created for
petitioner "real and appreciable," and not merely "imaginary and
unsubstantial," hazards of self-incrimination. Reg. v.
Boyes, 1 B. & S. 311, 330; Brown v. Walker, 161 U. S. 591 , 161 U. S.
599 -600; Rogers v. United States, 340 U.
S. 367 , 340 U. S. 374 .
Petitioner was confronted by a comprehensive system of federal and
state prohibitions against wagering activities; he was required, on
pain of criminal prosecution, to provide information which he might
reasonably suppose would be available to prosecuting authorities,
and which would surely prove a significant "link in a chain"
[ Footnote 9 ] of evidence
tending to establish his guilt. [ Footnote 10 ] Unlike the income tax return Page 390 U. S. 49 in question in United States v. Sullivan, 274 U.
S. 259 , every portion of these requirements had the
direct and unmistakable consequence of incriminating petitioner;
the application of the constitutional privilege to the entire
registration procedure was, in this instance, neither "extreme" nor
"extravagant." See id. at 274 U. S. 263 .
It would appear to follow that petitioner's assertion of the
privilege as a defense to this prosecution was entirely proper, and
accordingly should have sufficed to prevent his conviction.

															Nonetheless, this Court has twice concluded that the privilege
against self-incrimination may not appropriately be asserted by
those in petitioner's circumstances. United States v. Kahriger,
supra; Lewis v. Unite State, supra. We must therefore consider
whether those cases have continuing force in light of our more
recent decisions. Moreover, we must also consider the relevance of
certain collateral lines of authority; in particular, we must
determine whether either the "required records" doctrine, Shapiro v. United States, 335 U. S.
1 , or restrictions placed upon the use by prosecuting
authorities of information obtained as a consequence of the
wagering taxes, cf. Murphy v. Waterfront Commission, 378 U. S. 52 ,
should be utilized to preclude assertion of the constitutional
privilege in this situation. To these questions we turn. Page 390 U. S. 50 III The Court's opinion in Kahriger suggested that a
defendant under indictment for willful failure to register under §
4412 cannot properly challenge the constitutionality under the
Fifth Amendment of the registration requirement. For this point,
the Court relied entirely upon Mr. Justice Holmes' opinion for the
Court in United States v. Sullivan, supra. The taxpayer in
Sullivan was convicted of willful failure to file an income tax
return, despite his contention that the return would have obliged
him to admit violations of the National Prohibition Act. The Court
affirmed the conviction, and rejected the taxpayer's claim of the
privilege. It concluded that most of the return's questions would
not have compelled the taxpayer to make incriminating disclosures,
and that it would have been "an extreme, if not an extravagant,
application" of the privilege to permit him to draw within it the
entire return. 274 U.S. at 274 U. S. 263 .

															The Court in Sullivan was evidently concerned, first,
that the claim before it was an unwarranted extension of the scope
of the privilege, and, second, that to accept a claim of privilege
not asserted at the time the return was due would "make the
taxpayer, rather than a tribunal the final arbiter of the merits of
the claim." Albertson v. SACB, 382 U. S.
70 , 382 U. S. 79 .
Neither reason suffices to prevent this petitioner's assertion of
the privilege. The first is, as we have indicated, inapplicable,
and we find the second unpersuasive in this situation. Every
element of these requirements would have served to incriminate
petitioner; to have required him to present his claim to Treasury
officers would have obliged him "to prove guilt to avoid admitting
it." United States v. Kahriger, supra, at 345 U. S. 34 (concurring opinion). I n these circumstances, we cannot conclude
that his failure Page 390 U. S. 51 to assert the privilege to Treasury officials at the moment the
tax payments were due irretrievably abandoned his constitutional
protection. Petitioner is under sentence for violation of statutory
requirements which he consistently asserted at and after trial to
be unconstitutional; no more can here be required.

															The Court held in Lewis that the registration and
occupational tax requirements do not infringe the constitutional
privilege, because they do not compel self-incrimination, but
merely impose on the gambler the initial choice of whether he
wishes, at the cost of his constitutional privilege, to commence
wagering activities. The Court reasoned that, even if the required
disclosures might prove incriminating, the gambler need not
register or pay the occupational tax if only he elects to cease, or
never to begin, gambling. There is, the Court said, "no
constitutional right to gamble." 348 U.S. at 348 U. S.
423 .

															We find this reasoning no longer persuasive. The question is not
whether petitioner holds a "right" to violate state law, but
whether, having done so, he may be compelled to give evidence
against himself. The constitutional privilege was intended to
shield the guilty and imprudent as well as the innocent and
foresighted; if such an inference of antecedent choice were alone
enough to abrogate the privilege's protection, it would be excluded
from the situations in which it has historically been guaranteed,
and withheld from those who most require it. Such inferences,
bottomed on what must ordinarily be a fiction, have precisely the
infirmities which the Court has found in other circumstances in
which implied or uninformed waivers of the privilege have been said
to have occurred. See, e.g., Carnley v. Cochran, 369 U. S. 506 . Compare Johnson v. Zerbst, 304 U.
S. 458 , and Glasser v. United States, 315 U. S. 60 . To
give credence to such "waivers" without the most deliberate
examination of the circumstances surrounding them Page 390 U. S. 52 would ultimately license widespread erosion of the privilege
through "ingeniously drawn legislation." Morgan, The Privilege
against Self-Incrimination, 34 Minn.L.Rev. 1, 37. We cannot agree
that the constitutional privilege is meaningfully waived merely
because those "inherently suspect of criminal activities" have been
commanded either to cease wagering or to provide information
incriminating to themselves, and have ultimately elected to do
neither.

															The Court held in both Kahriger and Lewis that
the registration and occupational tax requirements are entirely
prospective in their application, and that the constitutional
privilege, since it offers protection only as to past and present
acts, is accordingly unavailable. This reasoning appears to us
twice deficient: first, it overlooks the hazards here of
incrimination as to past or present acts, and second, it is hinged
upon an excessively narrow view of the scope of the constitutional
privilege.

															Substantial hazards of incrimination as to past or present acts
plainly may stem from the requirements to register and to pay the
occupational tax. See generally McKee, The Fifth Amendment
and the Federal Gambling Tax, 5 Duke B.J. 86. In the first place,
satisfaction of those requirements increases the likelihood that
any past or present gambling offenses will be discovered and
successfully prosecuted. It both centers attention upon the
registrant as a gambler and compels "injurious disclosure[s]"
[ Footnote 11 ] which may
provide or assist in the collection of evidence admissible in a
prosecution for past or present offenses. These offenses need not
include actual gambling; they might involve only the custody or
transportation of gambling paraphernalia, or other preparations for
future gambling. Further, the acquisition of a federal gambling tax
stamp, Page 390 U. S. 53 requiring as it does the declaration of a present intent to
commence gambling activities, obliges even a prospective gambler to
accuse himself of conspiracy to violate either state gambling
prohibitions or federal laws forbidding the use of interstate
facilities for gambling purposes. See, e.g., Acklen v.
State, 196 Tenn. 314, 267
S.W.2d 101 .

															There is a second, and more fundamental, deficiency in the
reasoning of Kahriger and Lewis. Its linchpin is
plainly the premise that the privilege is entirely inapplicable to
prospective acts; for this the Court in Kahriger could
vouch as authority only a generalization at 8 Wigmore, Evidence §
2259c (3d ed.1940). [ Footnote
12 ] We see no warrant for so rigorous a constraint upon the
constitutional privilege. History, to be sure, offers no ready
illustrations of the privilege's application to prospective acts,
but the occasions on which such claims might appropriately have
been made must necessarily have been very infrequent. We are, in
any event, bid to view the constitutional commands as "organic
living institutions," whose significance is "vital not formal." Gompers v. United States, 233 U.
S. 604 , 233 U. S.
610 .

															The central standard for the privilege's application has been
whether the claimant is confronted by substantial and "real," and
not merely trifling or imaginary, hazards of incrimination. Rogers v. United States, 340 U. S. 367 , 340 U. S. 374 ; Brown v. Walker, 161 U. S. 591 , 161 U. S. 600 .
This principle does not permit the rigid chronological distinction
adopted in Kahriger and Lewis. We see Page 390 U. S. 54 no reason to suppose that the force of the constitutional
prohibition is diminished merely because confession of a guilty
purpose precedes the act which it is subsequently employed to
evidence. Yet, if the factual situations in which the privilege may
be claimed were inflexibly defined by a chronological formula, the
policies which the constitutional privilege is intended to serve
could easily be evaded. Moreover, although prospective acts will
doubtless ordinarily involve only speculative and insubstantial
risks of incrimination, this will scarcely always prove true. As we
shall show, it is not true here. We conclude that it is not mere
time to which the law must look, but the substantiality of the
risks of incrimination.

															The hazards of incrimination created by §§ 4411 and 4412 as to
future acts are not trifling or imaginary. Prospective registrants
can reasonably expect that registration and payment of the
occupational tax will significantly enhance the likelihood of their
prosecution for future acts, and that it will readily provide
evidence which will facilitate their convictions. Indeed, they can
reasonably fear that registration, and acquisition of a wagering
tax stamp, may serve as decisive evidence that they have, in fact,
subsequently violated state gambling prohibitions. Compare Ala.Code, Tit. 14, §§ 302(8)-(10) (1958); Ga.Code Ann. § 26-6413
(Supp. 1967). Insubstantial claims of the privilege as to entirely
prospective acts may certainly be asserted, but such claims are not
here, and they need only be considered when a litigant has the
temerity to pursue them.

															We conclude that nothing in the Court's opinions in Kahriger and Lewis now suffices to preclude
petitioner's assertion of the constitutional privilege as a defense
to the indictments under which he was convicted. To this extent, Kahriger and Lewis are overruled. Page 390 U. S. 55 IV We must next consider the relevance in this situation of the
"required records" doctrine, Shapiro v. United States, 335 U. S. 1 . It is
necessary first to summarize briefly the circumstances in Shapiro. Petitioner, a wholesaler of fruit and produce,
was obliged by a regulation issued under the authority of the
Emergency Price Control Act to keep and "preserve for examination"
various records "of the same kind as he has customarily kept. . .
." Maximum Price Regulation 426, § 14, 8 Fed.Reg. 9546, 9548-9549
(1943). He was subsequently directed by an administrative subpoena
to produce certain of these records before attorneys of the Office
of Price Administration. Petitioner complied, but asserted his
constitutional privilege. In a prosecution for violations of the
Price Control Act, petitioner urged that the records had
facilitated the collection of evidence against him, and claimed
immunity from prosecution under § 202(g) of the Act, 56 Stat. 30.
Petitioner was nonetheless convicted, and his conviction was
affirmed. 159 F.2d 890.

															On certiorari, this Court held both that § 202(g) did not confer
immunity upon petitioner and that he could not properly claim the
protection of the privilege as to records which he was required by
administrative regulation to preserve. On the second question, the
Court relied upon the cases which have held that a custodian of
public records may not assert the privilege as to those records,
and reiterated a dictum in Wilson v. United States, 221 U. S. 361 , 221 U. S. 380 ,
suggesting that

															"the privilege which exists as to private papers cannot be
maintained in relation to 'records required by law to be kept in
order that there may be suitable information of transactions which
are the appropriate subjects of governmental regulation and the
enforcement of restrictions validly established.' [ Footnote 13 ] " Page 390 U. S. 56 335 U.S. at 335 U. S. 33 . The
Court considered that "it cannot be doubted" that the records in
question had "public aspects," and thus held that petitioner, as
their custodian, could not properly assert the privilege as to
them. Id. at 335 U. S. 34 .

															We think that neither Shapiro nor the cases upon which
it relied are applicable here. [ Footnote 14 ] Compare generally Note, Required
Information and the Privilege against Self-Incrimination, 65
Col.L.Rev. 681, and McKay, Self-Incrimination and the New Privacy,
167 Sup.Ct.Rev.193, 214-217. Moreover, we find it unnecessary for
present purposes to pursue in detail the question, left unanswered
in Shapiro, of what "limits . . . the Government cannot
constitutionally exceed in requiring the keeping of records. . . ."
335 U.S. at 335 U. S. 32 . It
is enough that there are significant points of difference between
the situations here and in Shapiro which, in this
instance, preclude, under any formulation, an appropriate
application of the "required records" doctrine.

															Each of the three principal elements of the doctrine, as it is
described in Shapiro, is absent from this situation. Page 390 U. S. 57 First, petitioner Marchetti was not, by the provisions now at
issue, obliged to keep and preserve records "of the same kind as he
has customarily kept"; he was required simply to provide
information, unrelated to any records which he may have maintained,
about his wagering activities. This requirement is not
significantly different from a demand that he provide oral
testimony. Compare McKay, supra, at 221. Second,
whatever "public aspects" there were to the records at issue in Shapiro, there are none to the information demanded from
Marchetti. The Government's anxiety to obtain information known to
a private individual does not, without more, render that
information public; if it did, no room would remain for the
application of the constitutional privilege. Nor does it stamp
information with a public character that the Government has
formalized its demands in the attire of a statute; if this alone
were sufficient, the constitutional privilege could be entirely
abrogated by any Act of Congress. Third, the requirements at issue
in Shapiro were imposed in "an essentially noncriminal and
regulatory area of inquiry," while those here are directed to a
"selective group inherently suspect of criminal activities." Cf. Albertson v. SACB, 382 U. S. 70 , 382 U. S. 79 .
The United States' principal interest is evidently the collection
of revenue, and not the punishment of gamblers, see United
States v. Calamaro, 354 U. S. 351 , 354 U. S. 358 ;
but the characteristics of the activities about which information
is sought, and the composition of the groups to which inquiries are
made, readily distinguish this situation from that in Shapiro. There is no need to explore further the elements
and limitations of Shapiro and the cases involving public
papers; these points of difference in combination preclude any
appropriate application of those cases to the present one. Page 390 U. S. 58 V Finally, we have been urged by the United States to permit
continued enforcement of the registration and occupational tax
provisions, despite the demands of the constitutional privilege, by
shielding the privilege's claimants through the imposition of
restrictions upon the use by federal and state authorities of
information obtained as a consequence of compliance with the
wagering tax requirements. It is suggested that these restrictions
might be similar to those imposed by the Court in Murphy v.
Waterfront Commission, 378 U. S. 52 .

															The Constitution, of course, obliges this Court to give full
recognition to the taxing powers and to measures reasonably
incidental to their exercise. But we are equally obliged to give
full effect to the constitutional restrictions which attend the
exercise of those powers. We do not, as we have said, doubt
Congress' power to tax activities which are, wholly or in part,
unlawful. Nor can it be doubted that the privilege against
self-incrimination may not properly be asserted if other protection
is granted which "is so broad as to have the same extent in scope
and effect" as the privilege itself. Counselman v.
Hitchcock, 142 U. S. 547 , 142 U. S. 585 .
The Government's suggestion is thus, in principle, an attractive
and apparently practical resolution of the difficult problem before
us. Compare Mansfield, The Albertson Case:
Conflict Between the Privilege Against Self-Incrimination and the
Government's Need for Information, 1966 Sup.Ct.Rev. 103, 159, and McKay, supra, at 232. Nonetheless, we think
that it would be entirely inappropriate in the circumstances here
for the Court to impose such restrictions.

															The terms of the wagering tax system make quite plain that
Congress intended information obtained as a consequence of
registration and payment of the occupational Page 390 U. S. 59 tax to be provided to interested prosecuting authorities. See 26 U.S.C. § 6107. [ Footnote 15 ] This has evidently been the consistent
practice of the Revenue Service. We must therefore assume that the
imposition of use restrictions would directly preclude effectuation
of a significant element of Congress' purposes in adopting the
wagering taxes. [ Footnote
16 ] Moreover, the imposition of such restrictions would
necessarily oblige state prosecuting authorities to establish in
each case that their evidence was untainted by any connection with
information obtained as a consequence of the wagering taxes;
[ Footnote 17 ] the federal
requirements would thus be protected only at the cost of hampering,
perhaps seriously, enforcement of state prohibitions against
gambling. We cannot know how Congress would assess the competing
demands of the Page 390 U. S. 60 federal treasury and of state gambling prohibitions; we are,
however, entirely certain that the Constitution has entrusted to
Congress, and not to this Court, the task of striking an
appropriate balance among such values. [ Footnote 18 ] We therefore must decide that it would be
improper for the Court to impose restrictions of the kind urged by
the United States. VI We are fully cognizant of the importance for the United States'
various fiscal and regulatory functions of timely and accurate
information, compare Mansfield, supra, and Meltzer, Required Records, the McCarran Act, and the Privilege
against Self-Incrimination, 18 U.Chi.L.Rev. 687; but other methods,
entirely consistent with constitutional limitations, exist by which
Congress may obtain such information. See generally Counselman
v. Hitchcock, supra, at 142 U. S. 585 ; compare Murphy v. Waterfront Commission, supra. Accordingly, nothing we do today will prevent either the taxation
or the regulation by Congress of activities otherwise made unlawful
by state or federal statutes.

															Nonetheless, we can only conclude, under the wagering tax system
as presently written, that petitioner properly asserted the
privilege against self-incrimination, and that his assertion should
have provided a complete defense to this prosecution. This defense
should have reached both Page 390 U. S. 61 the substantive counts for failure to register and to pay the
occupational tax and the count for conspiracy to evade payment of
the tax. We emphasize that we do not hold that these wagering tax
provisions are as such constitutionally impermissible; we hold only
that those who properly assert the constitutional privilege as to
these provisions may not be criminally punished for failure to
comply with their requirements. If, in different circumstances, a
taxpayer is not confronted by substantial hazards of
self-incrimination, or if he is otherwise outside the privilege's
protection, nothing we decide today would shield him from the
various penalties prescribed by the wagering tax statutes.

															The judgment of the Court of Appeals is Reversed. MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.

															[For concurring opinion of MR. JUSTICE BRENNAN, see
post, p. 390 U. S.
72 .]

															[For concurring opinion of MR. JUSTICE STEWART, see
post, p. 390 U. S.
76 .]

															[For dissenting opinion of MR. CHIEF JUSTICE WARREN, see
post, p. 390 U. S.
77 .]

															[ Footnote 1 ]

															Certiorari was originally granted in Costello v. United
States, 383 U.S. 942, to consider these issues. Upon
Costello's death, certiorari was granted in the present case. 385
U.S. 1000. Marchetti and Costello, with others, were convicted at
the same trial of identical offenses, arising from the same series
of transactions. Certiorari both here and in Costello was
limited to the following questions:

															"Do not the federal wagering tax statutes here involved violate
the petitioner's privilege against self-incrimination guaranteed by
the Fifth Amendment? Should not this Court, especially in view of
its recent decision in Albertson v. Subversive Activities
Control Board, 382 U. S. 70 (1965), overrule United States v. Kahriger, 345 U. S. 22 (1953), and Lewis v. United States, 348 U. S.
419 (1955)?"

															After argument, the case was restored to the calendar and set
for reargument at the 1967 Term. 388 U.S. 903. Counsel were asked
to argue, in addition to the original questions, the following:

															"(1) What relevance, if any, has the required records doctrine, Shapiro v. United States, 335 U. S. 1 ,
to the validity under the Fifth Amendment of the registration and
special occupational tax requirements of 26 U.S.C. §§ 4411, 4412?
(2) Can an obligation to pay the special occupational tax required
by 26 U.S.C. § 4411 be satisfied without filing the registration
statement provided for by 26 U.S.C. § 4412?"

															[ Footnote 2 ]

															A July 1963 revision of Form 11-C modified the form of certain
of its questions. The record does not indicate which version of the
return was available to petitioner at the time of the omissions for
which he was convicted. The minor verbal variations between the two
do not affect the result which we reach today.

															[ Footnote 3 ]

															The Treasury Regulations provide that a stamp, evidencing
payment of the occupational tax, may not be issued unless the
taxpayer both submits Form 11-C and tenders the full amount of the
tax. 26 CFR § 44.4901-1(c). Accordingly, the Revenue Service has
refused to accept the $50 tax unless it is accompanied by the
completed registration form, and it has consistently been upheld in
that practice. See United States v. Whiting, 311 F.2d 191; United States v. Mungiole, 233 F.2d 204; Combs v.
Snyder, 101 F.
Supp. 531 , aff'd, 342 U.S. 939. The United States has,
in this case, acknowledged that the registration and occupational
tax provisions are not realistically severable. Brief on Reargument
37-41.

															[ Footnote 4 ]

															In his trial testimony in Grosso v. United States, decided herewith, post, p. 390 U. S. 62 , W.
Dean Struble, technical advisor to the District Director of
Internal Revenue, Pittsburgh, Pennsylvania, described Form 11-C as
follows:

															"A Form 11-C serves two purposes. The first is an application
for registry for a wagering tax stamp. After the application is
properly filed and the tax paid, at that time, the Form 11-C
becomes a special tax return."

															Transcript of Record 90.

															[ Footnote 5 ]

															The following illustrate the state gambling and wagering
statutes under which one engaged in activities taxable under the
federal provisions at issue here might incur criminal
penalties.Ala.Code, Tit. 14, c. 46 (1958); Alaska Laws, Tit. 65, c.
13 (1949); Ariz.Rev.Stat.Ann. § 13-438 (1956); Ark.Stat.Ann., Tit.
41, c. 20 (1947); Cal.Pen.Code §§ 330-337a (1956);
Colo.Rev.Stat.Ann., c. 40, Art. 10 (1963); Del.Code Ann., Tit. 11,
§§ 665-669 (1953); D.C.Code Ann. §§ 22-1504 to 22-1511 (1967);
Fla.Stat., c. 849 (1965); Ga.Code Ann., c. 26-64 (1953); Hawaii
Rev.Laws, c. 288 (1955); Idaho Code Ann., Tit. 18, c. 38 (1948);
Ill.Rev.Stat., c. 38, Art. 28 (1965); Ind.Ann.Stat., Tit. 10, c. 23
(1956); Iowa Code, c. 726 (1966); Kan.Stat.Ann., c. 21, Art. 15
(1964); Ky.Rev.Stat. § 436.200 (1962); La.Rev.Stat. § 14:90 (1950);
Me.Rev.Stat.Ann., Tit. 17, c. 61 (1964); Md.Ann.Code, Art. 27, §§
237-242 (1957); Mass.Gen.Laws Ann., c. 271 (1959); Mich.Stat.Ann. §
28.533 (1954); Minn.Stat. § 609.755 (1965); Miss.Code Ann. §§
2190-2202 (1942); Mo.Rev.Stat. § 563.350 (1959); Mont.Rev.Codes
Ann., Tit. 94, c. 24 (1947); Neb.Rev.Stat. § 28-941 (1943);
Nev.Rev.Stat. §§ 293.603, 465.010 (1957); N.H.Rev.Stat.Ann., c. 577
(1955); N.J.Rev.Stat., Tit. 2A, c. 112 (1953); N.M.Stat.Ann., c.
40A, Art. 19 (1953); N.Y.Pen.Law, Art. 225 (1967); N.C.Gen.Stat. §§
14-292 to 14-295 (1953); N.D.Cent.Code Ann., c. 12-23 (1959); Ohio
Rev.Code Ann., c. 2915 (1953); Okla.Stat.Ann., Tit. 21, c. 38
(1958); Ore.Rev.Stat. § 167.505 (1965); Pa.Stat.Ann., Tit. 18, §§
4603-4607 (1963); R.I.Gen.Laws Ann., Tit. 11, c.19 (1956); S.C.Code
Ann., Tit. 16, c. 8, Art. 1 (1962); S.D.Code, Tit. 24, c. 24.01
(1939); Tenn.Code Ann., Tit. 39, c. 20 (1955); Tex.Pen.Code Ann.,
c. 6 (1952); Utah Code Ann., Tit. 76, c. 27 (1953); Vt.Stat.Ann.,
Tit. 13, c. 43, subch. 2 (1959); Va.Code Ann., Tit. 18.1, c. 7,
Art. 2 (1950); Wash.Rev.Code, Tit. 9, c. 9.47 (1956); W.Va.Code
Ann., c. 61, Art. 10 (1961); Wis.Stat., c. 945 (1965);
Wyo.Stat.Ann., Tit. 6, c. 9, Art. 2 (1957). These statutes, of
course, vary in their terms and scope, but these variations
scarcely detract from the breadth or prevalence of the penalties
which in combination they create.

															[ Footnote 6 ]

															New Hampshire conducts a state sweepstakes, but imposes broad
criminal penalties upon privately operated lotteries.
N.H.Rev.Stat.Ann., c. 577 (1955). The following illustrate the
other state statutes which impose criminal penalties upon lottery
activities which would be taxable under these federal statutes.
Ala.Code, Tit. 14, c. 46 (1958); Alaska Laws § 65-13-1 (1949);
Ariz.Rev.Stat.Ann. § 13-436 (1956); Ark.Stat.Ann. § 41-2024 (1947);
Cal.Pen.Code §§ 319-326 (1956); Colo.Rev.Stat.Ann., c. 40, Art. 16
(1963); Del.Code Ann., Tit. 11, §§ 661-664 (1953); D.C.Code Ann. §
22-1501 (1967); Fla.Stat. § 849.09 (1965); Ga.Code Ann., c. 26-65
(1953); Hawaii Rev.Laws, c. 288 (1955); Idaho Code Ann., Tit. 18,
c. 49 (1948); Ill.Rev.Stat., c. 38, Art. 28 (1965); Ind.Ann.Stat.,
Tit. 10, c. 23 (1956); Iowa Code § 726.8 (1966); Kan.Stat.Ann., c.
21, Art. 15 (1964); Ky.Rev.Stat. § 436.360 (1962); La.Rev.Stat. §
14:90 (1950); Me.Rev.Stat.Ann., Tit. 17, c. 81 (1964); Md.Ann.Code,
Art. 27, § 356 (1957); Mass.Gen.Laws Ann., c. 271 (1959);
Mich.Stat.Ann., §§ 28.604-28.608 (1954); Miss.Code Ann. §§
2270-2279 (1942); Mo.Rev.Stat. § 563.430 (1959); Mont.Rev.Codes
Ann., Tit. 94, c. 30 (1947); Neb.Rev.Stat. § 28-961 (1943);
N.J.Rev.Stat., Tit. 2A, c. 121 (1953); N.M.Stat.Ann., c. 40A, Art.
19 (1953); N.Y.Pen.Law, Art. 225 (1967); N.C.Gen.Stat. §§ 14-289 to
14-291 (1953); N.D.Cent.Code Ann., c. 12-24 (1959); Ohio Rev.Code
Ann., c. 2915 (1953); Okla.Stat.Ann., Tit. 21, c. 41 (1958);
Ore.Rev.Stat. § 167.405 (1965); Pa.Stat.Ann., Tit. 18, §§ 4601-4602
(1963); R.I.Gen.Laws Ann., Tit. 11, c.19 (1956); S.C.Code Ann.,
Tit. 16, c. 8, Art. 1 (1962); S.D.Code, Tit. 24, c. 24.01 (1939);
Tenn.Code Ann. § 39-2017 (1955); Tex.Pen.Code Ann., Art. 654
(1952); Utah Code Ann., Tit. 76, c. 27 (1953); Vt.Stat.Ann., Tit.
13, c. 43, subch. 1 (1959); Va.Code Ann., Tit. 18.1, c. 7, Art. 2
(1950); Wash.Rev.Code, Tit. 9, c. 9.59 (1956); W.Va.Code Ann., c.
61, Art. 10 (1961); Wis.Stat., c 945 (1965); Wyo.Stat.Ann., Tit. 6,
c. 9, Art. 2 (1957).

															[ Footnote 7 ] See, e.g., Irvine v. California, 347 U.
S. 128 ; United States v. Zizzo, 338 F.2d 577; Commonwealth v. Fiorini, 202 Pa.Super. 88, 195 A.2d 119; State v. Curry, 92 Ohio App. 1, 109 N.E.2d 298; State
v. Reinhardt, 229 La. 673, 86 So. 2d
530 ; Griggs v. State, 37 Ala.App. 605, 73 So. 2d 382; McClary v. State, 211 Tenn. 46, 362
S.W.2d 450 . See also State v. Baum, 230 La. 247, 88
So. 2d 209.

															[ Footnote 8 ]

															One State has gone a step further to facilitate the enforcement
of its gambling prohibitions through the federal wagering tax.
Illinois requires each holder of a wagering tax stamp to register
with the clerk of the county in which he resides or conducts any
business, and imposes fines and imprisonment upon those who do not.
Ill.Rev.Stat., c. 38, § 28 (1965).

															[ Footnote 9 ]

															The metaphor is to be found in the opinions both of Lord Eldon
in Paxton v. Douglas, 19 Ves.Jr. 225, 227, and of Chief
Justice Marshall in United States v. Burr, In re Willie, 25 Fed.Cas. 38, 40 (No. 14,692e).

															[ Footnote 10 ]

															We must note that some States and municipalities have undertaken
to punish compliance with the federal wagering tax statutes in an
even more direct fashion. Alabama has created a statutory
presumption that possessors of federal wagering tax stamps are in
violation of state law.Ala.Code, Tit. 14, §§ 302(8)-(10) (1958).
Florida adopted a similar statute, Fla.Laws 1953, c. 28057, but it
was subsequently declared unconstitutional by the Florida Supreme
Court. Jefferson v. Sweat, 76 So.
2d 494 . The Supreme Court of Tennessee has upheld an ordinance
adopted by the City of Chattanooga which makes possession of a
federal tax stamp a misdemeanor. Deitch v. City of
Chattanooga, 195 Tenn. 245, 258
S.W.2d 776 . See, for a similar provision, Rev. Ord.,
Kansas City, Missouri, § 23.110 (1956), and Kansas City v.
Lee, 414 S.W.2d 251. Georgia has recently provided by statute
that the possession or purchase of a federal wagering tax stamp is
" prima facie evidence of guilt" of professional gambling.
Ga.Code Ann. § 26-6413 (Supp. 1967). See, for a similar
rule, McClary v. State, supra, n 7.

															[ Footnote 11 ] Hoffman v. United States, 341 U.
S. 479 , 341 U. S.
487 .

															[ Footnote 12 ]

															We presume that the Court referred to the following:

															"[T]here is no compulsory self-crimination in a rule of law
which merely requires beforehand a future report on a class of
future acts among which a particular one may or may not in future
be criminal at the choice of the party reporting."

															8 Wigmore, supra, at 349. But see Morgan, supra, at 37, and McKay, Self-Incrimination and the New
Privacy, 1967 Sup.Ct.Rev.193, 221.

															[ Footnote 13 ]

															The Court, in fact, quoted from the reiteration of the Wilson dictum included in Davis v. United States, 328 U. S. 582 , 328 U. S.
590 .

															[ Footnote 14 ]

															The United States has urged that this case is not reached by Shapiro simply because petitioner was required to submit
reports, and not to maintain records. Insofar as this is intended
to suggest the the crucial issue respecting the applicability of Shapiro is the method by which information reaches the
Government, we are unable to accept the distinction. We perceive no
meaningful difference between an obligation to maintain records for
inspection and such an obligation supplemented by a requirement
that those records be filed periodically with officers of the
United States. We believe, as the United States itself argued in Shapiro, that "[r]egulations permit records to be
retained, rather than filed, largely for the convenience of the
persons regulated." Brief for the United States in No. 49, October
Term 1947, at 21, n. 7.

															[ Footnote 15 ]

															Section 6107 reads as follows:

															"In the principal internal revenue office in each internal
revenue district there shall be kept, for public inspection, an
alphabetical list of the names of all persons who have paid special
taxes under subtitle D or E within such district. Such list shall
be prepared and kept pursuant to regulations prescribed by the
Secretary or his delegate, and shall contain the time, place, and
business for which such special taxes have been paid, and upon
application of any prosecuting officer of any State, county, or
municipality there shall be furnished to him a certified copy
thereof, as of a public record, for which a fee of $1 for each 100
words or fraction thereof in the copy or copies so requested may be
charged."

															The special taxes to which the section refers include the
occupational tax imposed by 26 U.S.C. § 4411.

															[ Footnote 16 ]

															The requirement now embodied in § 6107 was adopted prior to the
special occupational tax on wagering, but Congress plainly
indicated when it adopted the latter that it understood, and
wished, that state prosecuting authorities would be provided lists
of those who had paid the wagering tax. See H.R.Rep. No.
586, 82d Cong., 1st Sess., 60; S.Rep. No. 781, 82d Cong., 1st
Sess., 118.

															[ Footnote 17 ]

															The Court required such a showing as part of the restrictions
imposed in Murphy, 378 U.S. at 378 U. S. 79 , n.
18. The United States has acknowledged that this would be no less
imperative here. Brief for the United States 24-25.

															[ Footnote 18 ]

															It should be emphasized that it would not suffice here simply to
sever § 6107. See 26 U.S.C. § 7852(a). Cf. Warren v.
Mayor of Charlestown, 2 Gray 84, 99; Carter v. Carter Coal
Co., 298 U. S. 238 , 298 U. S. 316 .
We would be required not merely to strike out words, but to insert
words that are not now in the statute. Here, as in the analogous
circumstances of United States v. Reese, 92 U. S.
214 ,

															"This would, to some extent, substitute the judicial for the
legislative department of the government. . . . To limit this
statute in the manner now asked for would be to make a new law, not
to enforce an old one. This is no part of our duty." Id. at 92 U. S.
221 .

Summary: The Supreme Court case Marchetti v. United States (1968) dealt with the constitutionality of requiring people engaged in illegal wagering to register with the government and pay an occupational tax. The Court ruled that the Fifth Amendment privilege against self-incrimination barred prosecution for violating federal wagering tax statutes if doing so would incriminate the petitioner. This overruled previous cases, United States v. Kahriger and Lewis v. United States, which held the privilege against self-incrimination unavailable in similar situations. The Court emphasized the direct and unmistakable consequence of incriminating oneself by complying with the registration and tax payment requirements. The decision also addressed the "required records" doctrine from Shapiro v. United States, finding it inapplicable to the case.