448
Opinion of the Court
the plan on account of such junior claims or interests any property").20
For the purpose of plumbing the meaning of subsection (b)(2)(B)(ii) in search of a possible statutory new value exception, the lesson of this drafting history is equivocal. Although hornbook law has it that " 'Congress does not intend sub silentio to enact statutory language that it has earlier discarded,' " INS v. Cardoza-Fonseca, 480 U. S. 421, 442-443 (1987), the phrase "on account of" is not silentium, and the language passed by in this instance had never been in the bill finally enacted, but only in predecessors that died on the vine. None of these contained an explicit codification of the absolute priority rule,21 and even in these earlier bills the language in question stated an expansive new value concept, not the rule as limited in the Case dictum.22
The equivocal note of this drafting history is amplified by another feature of the legislative advance toward the current law. Any argument from drafting history has to account for the fact that the Code does not codify any authoritative pre-Code version of the absolute priority rule. Compare § 1129(b)(2)(B)(ii) ("[T]he holder of any claim or interest that is junior to the claims of such [impaired un-secured] class will not receive or retain under the plan on account of such junior claim or interest any property") with Boyd, 228 U. S., at 508 ("[T]he creditors were entitled to be paid before the stockholders could retain [a right of property] for any purpose whatever"), and Case, 308 U. S., at 116 (" '[C]reditors are entitled to priority over stockholders against all the property of an insolvent corporation' " (quoting Kansas City Terminal R. Co. v. Central Union
20 While the earlier proposed bills contained provisions requiring as a condition of confirmation that a plan be "fair and equitable," none of them contained language explicitly codifying the absolute priority rule. See, e. g., nn. 17-19, supra.
21 See n. 20, supra.
22 See nn. 17-18, supra.
Page: Index Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 NextLast modified: October 4, 2007