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Scalia, J., dissenting
furnish certain information regarding benefits to the Commissioner; and (3) § 9702(a)(1) provides that certain individuals described in § 9702(b)(1) "shall designate" the trustees for the Combined Fund "not later than 60 days . . . after the enactment date."
I agree that the actions mandated by the first two of these deadlines can be taken after the deadlines have expired (though perhaps not forever after, which is what the Court claims for the deadline of § 9706(a)). The reason that is so, however, does not at all apply to § 9706(a). In those provisions, the power to do what is mandated does not stem from the mere implication of the mandate itself. The private entities involved have the power to do what is prescribed, quite apart from the statutory command that they do it by a certain date: The UMWA Pension Plan has the power to transfer funds,2 and the trustees of the Combined Fund have the power to provide the specified information, whether the statute commands that they do so or not. The only question
2 Private entities, unlike administrative agencies, do not need authorization from Congress in order to act—they have the power to take all action within the scope of their charter, unless and until the law forbids it. The Court suggests that the Employee Retirement Income Security Act of 1974 (ERISA) may actually forbid the UMWA Pension Plan from transferring its pension surplus to the benefit fund. Ante, at 162-163, n. 8. But if this is true, that does not convert § 9705(a)(1) into a power-conferring statutory provision in the mold of § 9706(a). It instead means that the UMWA Pension Plan is subject to contradictory statutory mandates, and the relevant question becomes whether, and to what extent, § 9705(a)(1) implicitly repealed the provisions of ERISA as applied to the UMWA Pension Plan. Resolving that question would be no small task, given our disinclination to find implied repeals, see Morton v. Mancari, 417 U. S. 535, 551 (1974), and I will not speculate on it. Instead, I am content to go along with the Court's assumption that nothing in § 9705(a)(1), or in the rest of the Coal Act, prevents the UMWA Pension Plan from transferring money to the Combined Fund after the statutory deadline, and to emphasize that nothing in this concession lends support to the Court's interpretation of § 9706(a).
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