Cite as: 518 U. S. 839 (1996)
Opinion of Souter, J.
The dissent would adopt a different rule that the Government's dual roles of contractor and sovereign may never be treated as fused, relying upon Deming's pronouncement that " '[t]he United States as a contractor are not responsible for the United States as a lawgiver.' " Post, at 931 (quoting 1 Ct. Cl., at 191). But that view would simply eliminate the "public and general" requirement, which presupposes that the Government's capacities must be treated as fused when the Government acts in a nongeneral way. Deming itself twice refers to the "general" quality of the enactment at issue, 1 Ct. Cl., at 191, and notes that "[t]he statute bears upon [the governmental contract] as it bears upon all similar contracts between citizens, and affects it in no other way." Ibid. At the other extreme, of course, it is clear that any benefit at all to the Government will not disqualify an act as "public and general"; the silk embargo in Horowitz, for example, had the incidental effect of releasing the Government from its contractual obligation to transport Mr. Horowitz's shipment. Our holding that a governmental act will not be public and general if it has the substantial effect of releasing the Government from its contractual obligations strikes a middle course between these two extremes.46
government's failure to perform is the result of legislation targeting a class of contracts to which it is a party"); South Louisiana Grain Services, Inc. v. United States, 1 Cl. Ct. 281, 287, n. 6 (1982) (rejecting sovereign acts defense where the Government agency's actions "were directed specifically at plaintiff's alleged contract performance"). Despite the dissent's predictions, the sun is not, in fact, likely to set on the sovereign acts doctrine. While an increase in regulation by contract will produce examples of the "fusion" that bars the defense, we may expect that other sovereign activity will continue to occasion the sovereign acts defense in cases of incidental effect.
46 A different intermediate position would be possible, at least in theory. One might say that a governmental action was not "public and general" under Horowitz if its predominant purpose or effect was avoidance of the Government's contractual commitments. The difficulty, however, of ascertaining the relative intended or resulting impacts on governmental and
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