Cite as: 518 U. S. 839 (1996)
Rehnquist, C. J., dissenting
a result has an Alice in Wonderland aspect to it, which suggests the distinction upon which it is based is a fallacious one.
The principal opinion justifies its novel departure from existing law by noting that the contracts involved in the present case—unlike those in Merrion, Bowen, and Cherokee Nation—"do not purport to bind the Congress from enacting regulatory measures." Ante, at 881. But that is precisely what the unmistakability doctrine, as a canon of construction, is designed to determine: Did the contract surrender the authority to enact or amend regulatory measures as to the contracting party? If the sovereign did surrender its power unequivocally, and the sovereign breached that agreement to surrender, then and only then would the issue of remedy for that breach arise.
The second reason the principal opinion advances for its limitation on the unmistakability doctrine is that if it were applied to all actions for damages, it would impair the Government's ability to enter into contracts. But the law is well established that Congress may not simply abrogate a statutory provision obligating performance without breaching the contract and rendering itself liable for damages. See Lynch v. United States, 292 U. S. 571, 580 (1934); Bowen, supra, at 52. Equally well established, however, is that the sovereign does not shed its sovereign powers just because it contracts. See Providence Bank v. Billings, 4 Pet. 514, 565 (1830). The Government's contracting authority has survived from the beginning of the Nation with no diminution in bidders, so far as I am aware, without the curtailment of the unmistakability doctrine announced today.
The difficulty caused by the principal opinion's departure from existing law is best shown by its own analysis of the contracts presently before us. The principal opinion tells us first that "[n]othing in the documentation or the circumstances of these transactions purported to bar the Government from changing the way in which it regulated the thrift industry." Ante, at 868. But, it agrees with the finding of
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