Cite as: 512 U. S. 26 (1994)
Scalia, J., concurring in judgment
cur in the judgment of the Court that applying the amended statute to respondent Carlton did not violate due process.
Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.
If I thought that "substantive due process" were a constitutional right rather than an oxymoron, I would think it violated by bait-and-switch taxation. Although there is not much precision in the concept " 'harsh and oppressive,' " which is what the Court has adopted as its test of substantive due process unconstitutionality in the field of retroactive tax legislation, see, e. g., United States v. Hemme, 476 U. S. 558, 568-569 (1986), quoting Welch v. Henry, 305 U. S. 134, 147 (1938), surely it would cover a retroactive amendment that cost a taxpayer who relied on the original statute's clear meaning over $600,000. Unlike the tax at issue in Hemme, here the amendment "without notice, . . . gives a different and more oppressive legal effect to conduct undertaken before enactment of the statute." 476 U. S., at 569.
The Court attempts to minimize the amendment's harshness by characterizing it as "a curative measure," quoting some post-legislation legislative history (another oxymoron) to show that, despite the uncontested plain meaning of the statute, Congress never meant it to apply to stock that was not owned by the decedent at the time of death. See ante, at 31-32. I am not sure that whether Congress has treated a citizen oppressively should turn upon whether the oppression was, after all, only Congress' "curing" of its own mistake. Even if it should, however, what was done to respondent here went beyond a "cure." The retroactivity not only hit him with the tax that Congress "meant" to impose originally, but it caused his expenditures incurred in invited reliance upon the earlier law to become worthless. That could have been avoided, of course, by providing a tax credit for such expenditures. Retroactively disallowing the tax bene-
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