936
Rehnquist, C. J., dissenting
thrift" that would stave off foreclosure. Brief for United States 27.
In addition, Justice Scalia does not himself make the findings necessary for respondents to prevail, but relies on the findings of the trial court and the Court of Appeals for the Federal Circuit with respect to what the Government actually promised. Ante, at 922. But both the trial court and the Court of Appeals held the unmistakability doctrine did not apply here. Therefore, even under Justice Scalia's own premises, these findings are insufficient because they were made under a mistaken view of the applicable law.
IV
Justice Breyer in his separate concurrence follows a different route to the result reached by the principal opinion. But even under his own view of the law, he omits a necessary step in the reasoning required to hold the Government liable. He says that "the lower courts held that each [respondent] proved the existence of an express promise by the Government to grant them particular regulatory treatment for a period of years." Ante, at 913. But the Government could have made that promise and not made the further promise to pay respondents in the event that the regulatory regime changed. Justice Breyer concludes that second promise did exist as a matter of fact, but he never makes that finding himself. Instead, he says that the "principal opinion's careful examination of the circumstances reveals" that the Government did "inten[d] to make a binding promise . . . to hold the thrifts harmless from the effects of future regulation (or legislation)." Ante, at 918. But the principal opinion does not treat this as a question of fact at all, as Justice Breyer does, but instead as something which occurs by operation of law.
Justice Breyer relies on this illusory factual finding while at the same time commenting how implausible it would be for the Government to have intended to insure against a
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