United States v. Winstar Corp., 518 U.S. 839, 53 (1996)

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Cite as: 518 U. S. 839 (1996)

Opinion of Souter, J.

ognized FSLIC's authority to permit thrifts to count goodwill toward capital requirements when it modified the National Housing Act in 1987:

"No provision of this section shall affect the authority of the [FSLIC] to authorize insured institutions to utilize subordinated debt and goodwill in meeting reserve and other regulatory requirements." 12 U. S. C. § 1730h(d) (1988 ed.) (repealed 1989).

See also S. Rep. No. 100-19, p. 55 (1987) ("It is expected . . . that the [Bank Board] will retain its own authority to determine . . . the components and level of capital to be required of FSLIC-insured institutions"); NLRB v. Bell Aerospace Co., 416 U. S. 267, 275 (1974) ("[S]ubsequent legislation declaring the intent of an earlier statute is entitled to signifi-cant weight"). There is no serious question that FSLIC (and the Bank Board acting through it) was authorized to make the contracts in issue.

IV

The Government's final line of defense is the sovereign acts doctrine, to the effect that " '[w]hatever acts the government may do, be they legislative or executive, so long as they be public and general, cannot be deemed specially to alter, modify, obstruct or violate the particular contracts into which it enters with private persons.' " Horowitz v. United States, 267 U. S., at 461 (quoting Jones v. United States, 1 Ct. Cl. 383, 384 (1865)). Because FIRREA's alteration of the regulatory capital requirements was a "public and general act," the Government says, that act could not amount to a breach of the Government's contract with respondents.

The Government's position cannot prevail, however, for two independent reasons. The facts of this case do not warrant application of the doctrine, and even if that were otherwise the doctrine would not suffice to excuse liability under this governmental contract allocating risks of regulatory change in a highly regulated industry.

891

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