Cite as: 503 U. S. 30 (1992)
Stevens, J., dissenting
only possible justification for this would be a plea of necessity in order to keep the government functioning. As indicated above, such a plea would be totally without foundation in fact.
". . . When the Federal Government enters into business transactions, it should be prepared to deal upon a basis of equality with other creditors of the bankrupt business." Report of Commission on Bankruptcy Laws of the United States, H. R. Doc. No. 93-137, pt. 1, p. 22 (1973).
If these comments by the experts who played a major role in formulating the policies embodied in the Bankruptcy Code are sound—as I believe they are—one must ask what valid reason supports a construction of the waiver in § 106(c) that is so "strict" that the Court will not even examine its legislative history.
Surely the interest in requiring the Congress to draft its legislation with greater clarity or precision does not justify a refusal to make a good-faith effort to ascertain the actual meaning of the message it tried to convey in a statutory provision that is already on the books. The Court's stubborn insistence on "clear statements" burdens the Congress with unnecessary reenactment of provisions that were already plain enough when read literally.14 The cost to litigants, to
14 One scholar's comment on the countermajoritarian thrust of the Court's fascination with clear statement rules is illustrative:
"In Dellmuth v. Muth, [491 U. S. 223 (1989),] the Court held that the Education of the Handicapped Act (EHA) of 1975 did not abrogate state immunity. The Court reached this result even though the law imposed substantive obligations directly on the states, included the states in its jurisdictional grant, and included legislative discussion assuming that the states could be sued. After the Supreme Court changed the clear statement rule in 1985, Congress responded in 1986 with a broad textual abrogation of state immunity for statutes protecting the disabled. Yet in Dellmuth, the Court held not only that the EHA did not meet the more stringent test for abrogation, but that the 1986 statute made clear Congress' 'intent' not to abrogate state immunity in lawsuits filed before
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