910
Breyer, J., concurring
would apply as an initial matter, subject to later change at the Government's election, is unconvincing. See ibid. It would, indeed, have been madness for respondents to have engaged in these transactions with no more protection than the Government's reading would have given them, for the very existence of their institutions would then have been in jeopardy from the moment their agreements were signed.
* * *
We affirm the Federal Circuit's ruling that the United States is liable to respondents for breach of contract. Because the Court of Federal Claims has not yet determined the appropriate measure or amount of damages in this case, we remand for further proceedings.
It is so ordered.
Justice Breyer, concurring.
I join the principal opinion because, in my view, that opinion is basically consistent with the following understanding of what the dissent and the Government call the "unmistakability doctrine." The doctrine appears in the language of earlier cases, where the Court states that
"sovereign power, even when unexercised, is an enduring presence that governs all contracts subject to the sovereign's jurisdiction, and will remain intact unless surrendered in unmistakable terms." Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 148 (1982) (emphasis added).
See also United States v. Cherokee Nation of Okla., 480 U. S. 700, 706-707 (1987); Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U. S. 41, 52-53 (1986). The Government and the dissent believe that this language normally shields the Government from contract liability where a change in the law prevents it from carrying out its side of the bargain. In my view, however, this language,
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