with whom Mr. Justice Marshall joins, dissenting.
The District Court did not err, in my view, either in holding that it had jurisdiction by virtue of 28 U. S. C. § 1331, or in holding that the nine-month requirements of 42 U. S. C. §§416 (c)(5) and (e)(2) (1970 ed. and Supp. Ill) are constitutionally invalid.
I
Jurisdiction
The jurisdictional issue to which the Court devotes 10 pages, only to conclude that there is indeed jurisdiction over the merits of this case both here and in the District Court, was not raised in this Court by the parties before us nor argued, except most peripherally,1 in the briefs or *787at oral argument. The question involves complicated questions of legislative intent and a statutory provision, 42 U. S. C. § 405 (h), which has baffled district courts and courts of appeals for years in this and other contexts.2 Of course, this Court is always obliged to inquire into its own jurisdiction, when there is a substantial question about whether jurisdiction is proper either in the lower courts or in this Court. But since here there is, according to the Court, jurisdiction over the cause of action in any event,3 I would have thought it the wiser *788course merely to note that there was jurisdiction in the District Court either under 28 U. S. C. § 1331 or under 42 U. S. C. § 405 (g), leaving the resolution of the question of which is applicable to a case in which the decision is of some consequence, and in which the parties have, either of their own volition or upon request of the Court, briefed and argued the issue.4 Surely, the Court does not intend to adopt a new policy of always on its own canvassing, with a full discussion, all jurisdictional issues lurking behind every case, whether or not the issue has any impact at all on the resolution of the case.
Because the Court nonetheless treats the question fully, I am obliged to do so as well. For, at least insofar as my own research and consideration, unaided by the help ordinarily offered by adversary consideration, is adequate, I am convinced that the Court is quite wrong about the intended reach of § 405 (h), and that its construction attributes to Congress a purpose both contrary *789to all established notions of administrative exhaustion and absolutely without support in the clear language or legislative history of the statute. Further, today’s decision is in square conflict with Johnson v. Robison, 415 U. S. 361 (1974). And finally, even if § 405 (g) is the exclusive route for adjudicating actions seeking payment of a claim, I do not see how it can apply to the declaratory and injunctive aspects of this suit.
A
The Court rejects the District Court’s conclusion that § 405 (h) is no more than a codified requirement of administrative exhaustion on the basis of the third sentence of the section, which it characterizes as “sweeping and direct and [stating] that no action shall be brought under § 1331, not merely that only those actions shall be brought in which administrative remedies have been exhausted.” Ante, at 757. But the sentence does not say that no action of any kind shall be brought under § 1331, or other general grants of jurisdiction, which may result in entitling someone to benefits under Title II of the Act; it says merely that no action shall be brought under § 1331 et seq. “to recover on any claim arising under [Title II].” (Emphasis added.) This action, I believe, does not “arise under” Title II in the manner intended by § 405 (h), and it is, at least in part, not an action to “recover” on a claim. See Parts B and C, infra.
Section 405 (h), I believe, only bans, except under § 405 (g), suits which arise under Title' II in the sense that they require the application of the statute to a set of facts, and which seek nothing more than a determination of eligibility claimed to arise under the Act. Thus, I basically agree with the District Court that § 405 (h), including its last sentence, merely codifies the usual *790requirements of administrative exhaustion. The last sentence, in particular, provides that a plaintiff cannot avoid § 405 (g) and the first two sentences of § 405 (h) by bringing an action under a general grant of jurisdiction claiming that the Social Security Act itself provides him certain rights. Rather, on such a claim a plaintiff must exhaust administrative remedies, and the District Court is limited to review of the Secretary's decision, in the manner prescribed by § 405 (g).
The Court suggests that this reading of § 405 (h) makes the last sentence redundant. But this is the reading which the Social Security Board itself gave to the provision soon after it went into effect. In a document prepared for and approved by the Board in January 1940 as an outline of the procedures to be followed under the newly enacted Social Security Act Amendments of 1939,5 the interaction between §§ 405 (g) and (h) is described as follows:
“The judicial review section of the act, section [405 (g)], provides for civil suits against the Social Security Board in the United States District Courts. These may be filed by parties to hearings before the Board who are dissatisfied with final decisions of the Board. The review of the Board's actions in these suits will consist of a review of the Board's records in these cases. Thus, on the one hand, the Board is protected against the possibility of reversals of its decisions in separate actions filed for the purpose .... Actions of this kind are specifically excluded by section [405 (h)]. On the other hand, judicial review *791on the basis of the Board’s records in the cases makes it necessary that the record in each case be in the best possible state so as to avoid difficulties if a challenge in court occurs.” Federal Security Agency, Social Security Board, Basic Provisions Adopted by the Social Security Board for the Hearing and Review of Old-Age and Suvivors Insurance Claims With a Discussion of Certain Administrative Problems and Legal Consideration (1940), in Attorney General’s Committee on Administrative Procedure, Administrative Procedures in Government Agencies, S. Doc. No. 10, 77th Cong., 1st Sess., pt. 3, p. 39 (1941).
Since the last sentence of § 405 (h) is the only part of the section which “specifically exclude [s]” any “action,” the italicized portion obviously refers to that sentence.
Thus, the agency responsible for the enforcement of Title II adopted a construction of the statute which gave the last sentence the very meaning which the Court now rejects as “superfluous” and “already performed by other statutory provisions.” Ante, at 757, 759; and n. 6. As explained in the margin,6 the sentence is not superfluous, *792and the Board obviously did not regard it as such. Administrative interpretations by agencies of statutes which they administer are ordinarily entitled to great weight, see, e. g., Johnson v. Robison, 415 U. S., at 367-368; Udall v. Tallman, 380 U. S. 1, 16 (1965). And in this instance, the contemporary Social Security Board was intimately involved in the formulation of the 1939 amendments,7 and thus must be presumed to have had insight into the legislative intent.8
*793Indeed, to adopt the Court’s view of the last sentence of § 405 (h) is, as far as I can determine, to assume that it was inserted precisely to cover the situation here — a suit attacking the constitutionality of a section of Title II and seeking to establish eligibility despite the provisions of the statute. Yet, the Court is able to point to no evidence at all that Congress was concerned with this kind of lawsuit when it formulated these sections, and I have not been able to find any either.
Without any clear evidence, indeed without any *794evidence, the Court should not attribute to Congress an intention to filter through § 405 (g) this sort of constitutional attack. “Adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies.” Oestereich v. Selective Service Bd., 393 U. S. 233, 242 (1968) (Harlan, J., concurring in result); Johnson v. Robison, 415 U. S., at 368.9 See 3 K. Davis, Administrative Law Treatise §20.04 (1958). Thus, in a case such as this one, in which no facts are in dispute and no other sections of the Act are possibly applicable, “the only question of exhaustion was whether to require exhaustion of nonexistent administrative remedies.” Id., at 78. See Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U. S. 752, 773 (1947). To assume, with no basis in the legislative history or in the clear words of the statute, that Congress intended to require exhaustion in this kind of case, is to impute to Congress a requirement of futile exhaustion, in which the only issues in the case are not discussed, in which the actual issues are in no way clarified, in which no factual findings are made, and in which there is no agency expertise to apply. I see no basis for imputing such an odd intent, especially since, as discussed below, I believe the clear import of the wording of the statute is to the contrary.
*795B
I think it quite clear that a claim “arising under” Title II is one which alleges that the Title grants someone certain rights. This claim does not “arise under” the Title because, if the statute itself were applied, Mrs. Salfi would certainly lose. Instead, this case “arises under” the Constitution and seeks to hold invalid the result which would be reached under the statute itself. Johnson v. Robison, supra, as well as cases construing the meaning of “arising under” in other jurisdictional statutes,10 dictate this result.
In Johnson, construing the language which appears ante, at 761, we said, 415 U. S., at 367:
“The prohibitions would appear to be aimed at review only of those decisions of law or fact that arise in the administration by the Veterans’ Administration of a statute providing benefits for veterans. A decision of law or fact 'under’ a statute is made by the Administrator in the interpretation or application of a particular provision of the statute to a particular set of facts. . . . Thus, ... '[t]he questions of law presented in these proceedings arise under the Constitution, not under the statute whose validity is challenged.’ ” (Citation omitted.)
The Court, ante, at 761-762, suggests that this interpretation turned on the precise wording of the statute construed in Johnson, specifically on the words “decisions ... on any question of law and fact.” First, as the quotation above shows, Johnson in fact concentrated not upon what constitutes a “decision” of the admin*796istrator but upon what is a decision “under” a statute. But more significantly, the statute construed in Johnson had, between 1957 and 1970, read in part:
“[Decisions of the Administrator on any question of law or fact concerning a claim for benefits or payments under any law administered by the Veterans’ Administration shall be final and conclusive . .. .” 38 U. S. C. § 211 (a) (1964 ed., Supp. V) (emphasis added).
See Johnson, 415 U. S., at 368-369, n. 9. The italicized language is obviously quite similar to that used in §405 (h). The Court’s opinion in Johnson made clear that the holding that the section does not apply to constitutional attacks on veterans’ benefits legislation encompasses all prior versions of the section, and that the “claim for benefits” language in no way affected this construction of the statute.11
Aside from Johnson, our cases concerning the meaning of “arising under” in the jurisdictional statutes affirm that this claim arises under the Constitution and not under the Social Security Act. We have consistently held that a controversy regarding title to land does not “arise under” federal law “merely because one of the parties to it has derived his title under an act of Congress.” Shulthis v. McDougal, 225 U. S. 561, 570 (1912). See Oneida Indian Nation v. County of Oneida, *797414 U. S. 661, 676, and n. 11 (1974). Rather, “a suit to enforce a right which takes its origin in the laws of the United States is not necessarily one arising under the ... laws of the United States.” Shoshone Mining Co. v. Rutter, 177 U. S. 505, 507 (1900); Oneida Indian Nation, supra, at 683 (Rehnquist, J., concurring). Unless the dispute requires, for its resolution, a decision concerning federal law, the case does not arise under federal law even if, but for a federal statute, there would be ho right at all. Shulthis v. McDougal, supra, at 569; Oneida Indian Nation, supra, at 677.
Thus, “arising under” is a term of art in jurisdictional statutes referring, at least in part, to the body of law necessary to consider in order to determine the rights in question. Here, there is no dispute about the application of the Social Security Act; the only controversy concerns whether the Constitution permits the result which the Social Security Act would require. Therefore, this case does not concern a “claim arising under” Title II, and is not precluded by the last sentence of § 405 (h) from consideration under 28 U. S. C. § 1331.
C
Not only does this case not concern a “claim arising under” Title II, but it is, at least in part, not an “action ... to recover on any claim.” (Emphasis added.) A three-judge District Court dealt with the “recover on [a] claim” aspect of § 405 (h) in Gainville v. Richardson, 319 F. Supp. 16, 18 (Mass. 1970).12 Judge Wyzanski wrote concerning the effect of the last sentence of § 405 (h):
“In the present action, while plaintiff does, per*798haps improperly, seek damages, his complaint also has prayers for a declaratory judgment that § 203 (f) (3) of the Social Security Act, 42 U. S. C. § 403 (f)(3) is unconstitutional, and for an injunction restraining defendant from applying that section. If he were to be successful with respect to those prayers, plaintiff would not, in the language of the statute, ‘recover on any claim’ for benefits. For recovery of benefits he would still need to resort to the administrative process. The only effect of a declaratory judgment or injunction by this court would be to preclude the Secretary from making the challenged deduction.” 319 F. Supp., at 18.
This holding seems eminently sensible to me. The legislative history and administrative interpretation of § 405 (h), supra, at 790-792, and n. 8, reveal no basis for supposing that the section was to apply to suits which did not request immediate payment of a claim as part of the relief. To construe the statute to cover all actions which may later, after administrative consideration, result in eligibility under Title II is to mutilate the statutory language.
The holding in Gainville, supra, applies squarely to this case. The complaint sought declaratory and injunctive relief with respect to both the named plaintiffs and the class, as well as retroactive benefits. App. 12-13. The injunction sought was either an order to provide benefits or “an opportunity for a hearing on the genuineness of their status, [for] plaintiffs and all those similarly situated.” Id., at 13. Thus, even if § 405 (h) precludes granting retroactive benefits except under § 405 (g), it would not, under the rationale of Gainville, supra, preclude granting any declaratory and injunctive relief to the class, since the relief requested would not necessarily be tantamount to recovery on a claim. Indeed, *799the appellants seem to have conceded as much in this case, since it argued here that §§ 405 (g) and (h) were preclusive only with regard to retroactive benefits, see n. 1, supra.
The Court concludes that there was jurisdiction over the claim for retroactive benefits for the named plaintiffs under §405 (g). (But see Part D, infra.) Under the Gainville rationale, there would be jurisdiction under § 1331 over the claims for class declaratory and injunctive relief. And if there was jurisdiction under one jurisdictional statute or another for each part of the action, surely there was jurisdiction over the whole.13
D
Finally, even if I could agree, and I do not, that § 405 (g) is the exclusive route for consideration of this kind of case, I would dissent from the Court’s treatment of the exhaustion requirement of § 405 (g), ante, at 764-767. *800The Court admits, ante, at 765, that the purposes of administrative exhaustion “have been served once the Secretary has satisfied himself that the only issue is the constitutionality of a statutory requirement, a matter which is beyond his jurisdiction to determine, and that the claim is neither otherwise invalid nor cognizable under a different section of the Act.” Nonetheless, the Court construes the statute so as to permit “the Secretary [to] specify such requirements for exhaustion as he deems serve his own interests in effective and efficient administration. . . . [A] court may not substitute its conclusion as to futility for the contrary conclusion of the Secretary.” Ante, at 766. (Emphasis supplied.) If, as the Court holds, the finality and hearing requirements of § 405 (g) are not jurisdictional,14 ibid., then I fail to see why it is left to the Secretary to determine when the point of futility is reached, a power to be exercised, apparently, with regard only to the Secretary’s needs and without taking account of the claimants’ interest in not exhausting futile remedies,15 and in ob*801taining promptly benefits which have been unconstitutionally denied. Further, the Court leaves the way open for a lawless application of this power, since the Secretary can evidently, once the case is in court, assert or not assert the full exhaustion requirements of § 405 (g), as he pleases.
Moreover, and significantly, it flagrantly distorts the record in this case to say that the Secretary waived the exhaustion requirements of § 405 (g), recognizing their futility. True, the Secretary does not here claim a lack of jurisdiction for failure to exhaust on the individual claim, see n. 1, supra. But he did, in the District Court, move to dismiss the entire action for lack of subject-matter jurisdiction. See Notice and Motion to Dismiss or for Summary Judgment, at Record 114-117. The Secretary said, referring to §§ 405 (g) and (h):
“From the above provisions, it is clear that the only civil action permitted to an individual on any claim arising under Title II of the Act is an action to review the ‘final decision of the Secretary made after a hearing . . . .’ The complaint, however, does not allege jurisdiction under section [405 (g)] .... Moreover, there has been no ‘final decision’ by the Secretary on the matters herein com*802plained of .. . and plaintiffs have not exhausted their administrative remedies. The exhaustion of any available administrative remedies is a condition precedent to the plaintiffs [sic] bringing this action against the defendants,’ and the issue is one of subject matter jurisdiction.” Defendants’ Memorandum in Opposition to the Plaintiffs’ Motion for Preliminary Injunction, at Record 65. (First emphasis added.)
In the face of this statement, the Court’s conclusion that the Secretary determined “that for the purposes of this litigation the reconsideration determination is ‘final,’ ” ante, at 767, is patently indefensible.
II
The merits of this case can be dealt with very briefly. For it is, I believe, apparent on the face of the Court’s opinion that today’s holding is flatly contrary to several recent decisions, specifically Vlandis v. Kline, 412 U. S. 441 (1973); U. S. Dept. of Agriculture v. Murry, 413 U. S. 508 (1973); and Jimenez v. Weinberger, 417 U. S. 628 (1974).
In Vlandis, we said, 412 U. S., at 446: “[Permanent irrebuttable presumptions have long been disfavored under the Due Process [Clause] of the . . . Fourteenth [Amendment].” The Court today distinguishes Stanley v. Illinois, 405 U. S. 645 (1972), and Cleveland Board of Education v. LaFleur, 414 U. S. 632 (1974), two cases which struck down conclusive presumptions, because both dealt with protected rights, while this case deals with “a noncontractual claim to receive funds from the public treasury [which] enjoys no constitutionally protected status.” Ante, at 772. But Vlandis also dealt with a Government benefit program — the provision of an *803education at public expense. Since the Court cannot dispose of Vlandis as it does Stanley and LaFleur, it attempts to wish away Vlandis by noting that “where Connecticut purported to be concerned with residency, it might not at the same time deny to one seeking to meet its test of residency the opportunity to show factors clearly bearing on that issue.” Ante, at 771.
Yet, the Connecticut statute in Vlandis did not set “residency,” undefined, as the criteria of eligibility; it defined residency in certain ways. The definitions of “resident” were precisely parallel to the statute here, which defines “widow” and “child” in part by the number of months of marriage, 42 TJ. S. C. §§ 416 (c) and (e) (1970 ed. and Supp. III).
Similarly, Murry, supra, and Jimenez, supra, both dealt with conclusive presumptions contained in statutes setting out criteria for eligibility for Government benefits. The Court distinguishes them as cases in which the “criteria . . . bear no rational relation to a legitimate legislative goal.” Ante, at 772. But if the presumptions in Murry and Jimenez were irrational, the presumption in this case is even more irrational. We have been presented with no evidence at all that the problem of collusive marriages is one which exists at all. Indeed, the very fact that Congress has continually moved back the amount of time required to avoid the irrebuttable presumption, ante, at 778-780, suggests that it found, for each time period set, that it was depriving deserving people of benefits without alleviating any real problem of collusion. There is no reason to believe that the nine-month period is any more likely to discard a high proportion of collusive marriages than the five-year, three-year, or one-year periods employed earlier.
The Court says: “The administrative difficulties of individual eligibility determinations are without doubt *804matters which Congress may consider when determining whether to rely on rules which sweep more broadly than the evils with which they seek to deal.” Ante, at 784. But, as we said in Stanley v. Illinois, supra:
“[T]he Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.” 405 U. S., at 656.
This is not to say, nor has the Court ever held, that all statutory provisions based on assumptions about underlying facts are per se unconstitutional unless individual hearings are provided. But in this case, as in the others in which we have stricken down conclusive presumptions, it is possible to specify those factors which, if proved in a hearing, would disprove a rebuttable presumption. See, e. g., Vlandis, 412 U. S., at 452. For example, persuasive evidence of good health at the time of marriage would be sufficient, I should think, to disprove that the marriage was collusive. Also, in this case, as in Stanley, 405 U. S., at 655, and LaFleur, 414 U. S., at 643, the presumption, insofar as it precludes people as to whom the presumed fact is untrue from so proving, runs counter to the general legislative policy — here, providing true widows and children with survivors’ benefits. And finally, the presumption here, like that in Vlandis, Murry, and Jimenez, involves a measure of social opprobrium; the assumption is that the individual has purposely undertaken to evade legitimate requirements. When these factors are present, I believe *805that the Government’s interests in efficiency must be surrendered to the individual’s interest in proving that the facts presumed are not true as to him.
I would affirm the judgment of the District Court.
The appellants in their jurisdictional statement raised as one of the questions presented “[w]hether sovereign immunity bars this [suit] insofar as it seeks retroactive social security benefits.” Jurisdictional Statement 2 (emphasis added). Their argument was that no retroactive benefits were available to the class, because 28 U. S. C. § 1331 does not waive sovereign immunity, because 42 U. S. C. § 405 (h) bars a suit seeking retroactive benefits except under §405 (g), and because the exhaustion requirements of §405 (g) were not met. Brief for Appellants 16-18. See also Tr. of Oral Arg. 7-8:
“Question: ... [I]s the United States satisfied there was jurisdiction in the district court here ?
“Mrs. Shapiro: We are not satisfied that there was jurisdiction to the extent that it .. . identified a class and required retroactive ;payments to all members of the class.” (Emphasis added.)
Thus, the appellants never claimed here that the District Court was without jurisdiction over the merits of this case, for they conceded, apparently, jurisdiction to grant declaratory and injunctive relief.
See, e. g., on the effect of §§ 405 (g) and (h) on cases seeking to invalidate as unconstitutional a provision of Title II of the Social Security Act, Bartley v. Finch, 311 F. Supp. 876 (ED Ky. 1970), summarily aff’d on the merits sub nom. Bartley v. Richardson, 404 U. S. 980 (1971); Gainville v. Richardson, 319 F. Supp. 16 (Mass. 1970); Griffin v. Richardson, 346 F. Supp. 1226 (Md.), summarily aff’d, 409 U. S. 1069 (1972); Diaz v. Weinberger, 361 F. Supp. 1 (SD Fla. 1973); Wiesenfeld v. Weinberger, 367 F. Supp. 981 (NJ 1973), aff’d, 420 U. S. 636 (1975); Kohr v. Weinberger, 378 F. Supp. 1299 (ED Pa. 1974) (appeal docketed, No. 74-5538).
Bartley v. Finch, supra, was the only one of these cases holding that § 405 (g) is the exclusive means of determining the constitutionality of a provision of the Social Security Act, and that there was, because of noncompliance with §405 (g), no jurisdiction. The District Court then went on to decide the merits. This Court’s affirmance was explicitly on the merits, and thus must be taken to have held that there was jurisdiction even though § 405 (g) was not complied with.
Other courts have grappled with §§ 405 (g) and (h) in other contexts. See, e. g., Filice v. Celebrezze, 319 F. 2d 443 (CA9 1963); compare Cappadora v. Celebrezze, 356 F. 2d 1 (CA2 1966), with Stuckey v. Weinberger, 488 F. 2d 904 (CA9 1973) (en banc). In Cappadora, supra, Judge Friendly, in considering the application of §§ 405 (g) and (h) to review of a decision not to reopen a claim of statutory qualification, cautioned against overly literal interpretation of the sections. 356 F. 2d, at 4-5.
If the Court had determined to affirm on the merits, then the question actually raised by the appellants — whether there is jurisdiction to award retroactive benefits despite noneompliance with *788§ 405 (g) — may have been fairly before us, and may have entailed canvassing the jurisdictional questions the Court today discusses. But since the Court reverses on the merits, the source of the District Court’s jurisdiction is immaterial and, particularly, it is irrelevant whether or not there was jurisdiction over the class complaint. The Court’s decision on the latter question, ante, at 764, can only be characterized as dictum.
In Norton v. Weinberger, appeal docketed, No. 74-6212, the District Court did not declare the contested portion of Title II of the Social Security Act unconstitutional, and we therefore lack jurisdiction under 28 U. S. C. § 1252. Thus, if § 405 (g) is the exclusive route for determination of constitutional attacks on Title II, and if, as the Court suggests, ante, at 763 n. 8, there is a question regarding the power of a court to grant an injunction under § 405 (g), we could be without jurisdiction under 28 U. S. C. § 1253 in Norton because the three-judge court, without power to enjoin the statute, was improperly convened under 28 U. S. C. § 2282. Thus, Norton, unlike this case, would be the appropriate vehicle for determination of the jurisdictional question decided today.
Sections 405 (g) and (h) were part of these amendments. See Social Security Act Amendments of 1939. Tit. II, §201, 53 Stat. 1362. Before that, the Social Security Act contained no explicit provisions concerning judicial review. See H. R.-Rep. No. 728, 76th Cong., 1st Sess., 43 (1939).
The Court argues, ante, at 759 n. 6, that if the third sentence of § 405 (h) merely forbids a bypass of § 405 (g) via a separate action not framed as a review of the Secretary’s decision, it is superfluous because an application is a prerequisite to entitlement and “[o]nce the application is filed, it is either approved ... or it is denied,” resulting in a decision of the Secretary which, under the second sentence of §405 (h), cannot be reviewed “save pursuant to §405 (g).” This analysis is faulty in several respects. First, without the last sentence of § 405 (h), an applicant might first file an application and then, before it is acted upon at all, file a suit for benefits under Title II. Second, it is not true that all entitlement to benefits hinge upon filing an application. In some instances, a person already receiving one type of benefits need not file a new application in order to receive another category of benefits. See, e. g., *79242 TJ. s. C. §§ 402 (e) (1) (C) (ii) and (f) (1) (C) (1970 ed., Supp. Ill); § 402 (g) (1) (D). Finally, even if an application has been filed and a decision made upon it, the applicant might try to file a suit seeking not review of the administrative record but a de novo determination of eligibility. This would raise the question whether the second sentence of § 405 (g) should be read only to prescribe the way in which the administrative record “shall be reviewed”; the third sentence makes dear, however, that no action except review of the administrative record is available for suits claiming eligibility under the statute.
See Report of the Social Security Board, Proposed Changes in the Social Security Act, H. R. Doc. No. 110, 76th Cong., 1st Sess. (1939); Hearings on Social Security before the House Committee on Ways and Means, 76th Cong., 1st Sess., vols. 1, 3, pp. 45-69, 2163— 2433 (1939) (testimony of Dr. Altmeyer, Chairman of the Social Security Board).
Other indices of legislative intent and administrative interpretation, although sparse, also suggest that §§ 405 (g) and (h) were intended and interpreted as nothing more than a codification of ordinary administrative exhaustion requirements, applicable to cases presenting questions of fact and of interpretation of the statute. The 1939 Report of the Social Security Board, see n. 7, supra, suggested that the amendments include a “[provision that findings of fact and decisions of the Board in the allowance of claims shall be final and conclusive. Such a provision would follow the precedent of the World War Veterans’ Act and of other legislation with respect to agencies similar to the Board which handle a large number of small claims.” Id., at 13. At the hearings on the amendments, Dr. Altmeyer explained this recommendation as “follow [ing] the *793precedent laid down in . . . other acts, where there is a volume of small claims, and where a review of the findings of fact would lead to . . . duplicate administration of the law.’’ Hearings, n. 7, supra, vol. 3, p. 2288. (Emphasis added.) Thus, at their inception the exhaustion provisions which became §§ 405 (g) and (h) were clearly-intended to apply only to run-of-the-mill claims under the statutory provisions, in which factual determinations would be paramount.
The House of Representatives Report says of § 405 (g): "The provisions of this subsection are similar to those made for the review of decisions of many administrative bodies.” H. R. Rep. No. 728, 76th Cong., 1st Sess., 43 (1939). The Report describes §405 (h) basically in its own words. Id., at 43-44. There is no indication that the latter section was intended in any way to alter the intent indicated by the quoted sentence — to legislate only ordinary administrative exhaustion requirements.
Finally, a statement inserted by Mr. Mitchell, Commissioner of Social Security, into the record of the 1959 Hearings on the Administration of the Social Security Disability Insurance Program before the Subcommittee on the Administration of the Social Security Laws of the House Committee on Ways and Means, 86th Cong., 1st Sess., 977 (1960), again reflects the view that
§§ 405 (g) and (h) together merely reiterate, even if a bit redundantly, that “the jurisdiction of a court to review a determination of the Secretary is limited to a review of the record made before the Secretary. This is made amply clear by the second and third sentences of § [405 (g)] and by the provisions of [§405 (h)]. . . . The court has no power to hold a hearing and determine the merits of the claim because the statute makes it clear that the determination of claims is solely a function of the Secretary.”
At least twice, claimants who attempted to exhaust pursuant to § 405 (g) on a constitutional attack on Title II have been met with an administrative holding that constitutional claims are beyond the competence of the administrative agency. See In re Ephram Nestor, Referee’s Decision, Jan. 31, 1958, at Tr. 9, Flemming v. Nestor, O. T. 1959, No. 54; In re Lillian Daniels, Administrative Law Judge’s Decision, Nov. 14, 1973, cited in Appellees’ Motion to Affirm and/or Dismiss 21 n. 34. This administrative determination of the agency’s jurisdiction is due great deference. Johnson v. Robison, 415 U. S. 361, 367-368 (1974).
The last sentence of §405 (h), upon which the Court relies so heavily, refers expressly to old §41 of Title 28, now 28 U. S. C. § 1331 et seq. Thus, it is appropriate to assume that “arising under” is used in § 405 (h) in the same sense as it is used in the general jurisdictional statutes.
Johnson discusses at length the reasons why the “concerning a claim for benefits or payments” language was eliminated. 415 U. S., at 371-373. These reasons had nothing to do with the problem of constitutional attacks presented in Johnson and presented here. The Court concluded: “Nothing whatever in the legislative history of the 1970 amendment, or predecessor no-review dames, suggests any congressional intent to preclude judicial cognizance of constitutional challenges to veterans’ benefits legislation.” Id., at 373. (Emphasis added.)
This Court, 409 U. S. 1069 (1972), summarily affirmed Griffin v. Richardson, 346 F. Supp. 1226, 1230 (Md.), which expressed basically the same view, albeit somewhat less clearly.
Although this case was argued here as if the District Court granted retroactive benefits to the class, I am not sure this is so. The injunction issued ordered the Secretary “to provide benefits, from the time of original entitlement, to plaintiffs and the class they represent, provided said plaintiffs and class are otherwise fully eligible to receive said benefits.” 373 F. Supp. 961, 966 (ND Cal. 1974). (Emphasis added.)
As the Court points out, ante, at 759 n. 6, in most instances, see n. 6, supra, a person is not “eligible” for benefits until he files an application. Further, the order obviously contemplates administrative proceedings in order to determine whether “such persons are otherwise fully eligible.” Finally, if exhaustion of § 405 (g) is indeed, as the Court holds, always a prerequisite to eligibility, then a person would not be “otherwise fully eligible” unless and until he exhausts § 405 (g). Thus, I believe that the order can be read not to mandate retroactive benefits but only to require that claims of the class members be treated as if the nine-month marriage requirement did not exist. Such an order does not constitute recovery on a claim and, in my view, was proper under 28 U. S. C. § 1331.
The Court has to ignore plain language of the statute in order to avoid the absurd result of requiring full exhaustion on all claims such as this one, even after the point of futility is reached. The statute says that judicial review can be had only “after a hearing,” § 405 (g), and it is apparent that the hearing contemplated is a full, evidentiary hearing, see § 405 (b). Rather than avoiding the statutory language by holding that the Secretary can nonetheless dispense with a hearing, the Court would do better to recognize that the patent inapplicability of the statutory language to this kind of case suggests that the statute was never intended to apply at all to constitutional attacks beyond the Secretary's competence.
Indeed, in some cases similar to this one, administrative exhaustion is functionally impossible. For example, in Weinberger v. Wiesenfeld, 420 U. S. 636 (1975), the applicant was ineligible for benefits because he was a man, a fact obviously apparent as soon as he appeared at the Social Security office. Not surprisingly, he *801mas refused an opportunity even to file an application for benefits. Id., at 640 n. 6. This case is slightly different, since Mrs. Salfi was precluded not by the obvious fact of her sex, but by a fact which presumably did not appear until she filled out the application— that she had not been married long enough. Yet, the Court suggests that we had jurisdiction in Wiesenfeld only because of a stipulation that exhaustion would have been futile. Ante, at 767 n. 10. Does this intimate that the Secretary could have refused to waive exhaustion and thereby have eliminated § 405 (g) jurisdiction, even though Wiesenfeld could not possibly have complied with the statute without wrestling an application from the clerk and somehow forcing him to file it?