Cite as: 518 U. S. 839 (1996)
Rehnquist, C. J., dissenting
cally surrendered in terms which admit of no other reasonable interpretation." St. Louis, 210 U. S., at 280. Justice Scalia finds that the presumption has been rebutted here; he, like Justice Breyer, finds that the Government had made a promise that its subsequent action would not frustrate the contract. Justice Scalia, however, finds that obligation is contained implicitly within the "promis[e] to regulate . . . in a particular fashion," and the Government's consideration. Ante, at 921.
But that is hardly what one normally thinks to be "unmistakable terms." Indeed, that promise plus consideration is no different from what Justice Scalia says applies to private parties. Ante, at 920. The Government has "promise[d] to do x in exchange for [respondents] doing y," and in so doing "impliedly promise[d] not to do anything that [would] disable [the Government] from doing x, or disable [respondents] from doing y—so that if either of [the parties'] performances is rendered impossible by such an act on [the Government's] part, [the Government is] not excused from [its] obligation." Ibid. (emphasis added). But more than this is required for Government contracts, as Justice Scalia had seemed to acknowledge.
His point about quid pro quo adds little, for it necessarily assumes that there has been a promise to provide a particular regulatory treatment which cannot be affected by subsequent action, as opposed to a promise to provide that treatment unless and until there is subsequent action. Ante, at 921. But determining which promise the Government has made is precisely what the unmistakability doctrine is designed to determine. If the Government agreed to treat the losses acquired by respondents as supervisory goodwill in the short term, but made no commitment about their regulatory treatment over the long term, respondents still received consideration. Such consideration would be especially valuable to an unhealthy thrift because it would provide "a number of immediate benefits to the acquiring
935
Page: Index Previous 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 NextLast modified: October 4, 2007