United States Trustee v. John Q. Hammons Fall 2006, LLC

P R E L I M I N A R Y P R I N T
Volume 602 U. S. Part 1
Pages 487–525
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 14, 2024
REBECCA A. WOMELDORF
reporter of decisions
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487
Syllabus
OFFICE OF THE UNITED STATES TRUSTEE v.
JOHN
Q. HAMMONS FALL 2006, LLC, et al.
certiorari to the united states court of appeals for
the tenth circuit
No. 22–1238. Argued January 9, 2024—Decided June 14, 2024
Two Terms ago, in Siegel v. Fitzgerald, 596 U. S. 464, the Court held that
a statute violated the Bankruptcy Clause's uniformity requirement be-
cause it permitted different fees for Chapter 11 debtors depending on
the district where their case was fled. In this case, the Court is asked
to determine the appropriate remedy for that constitutional violation.
As noted in Siegel, there are three options: (1) refund fees for the thou-
sands of debtors charged higher fees in districts administered by the
U. S. Trustee Program, (2) retroactively extract higher fees from the
small number of debtors charged lower fees in districts administered by
the Bankruptcy Administrator Program, or (3) require only prospective
fee parity. See id., at 480.
As in Siegel, this case arises from a case fled in a U. S. Trustee dis-
trict. In 2016, 76 legal entities fled for Chapter 11 bankruptcy in the
District of Kansas. In 2018, under the amended fee statute the Court
later found unconstitutional in Siegel, the debtors began paying higher
fees than they would have if their case had been fled in a Bankruptcy
Administrator district. In 2020, the debtors challenged the constitu-
tionality of those fees. The Bankruptcy Court found no constitutional
violation, but the Tenth Circuit, anticipating Siegel, reversed. To rem-
edy the constitutional violation, the Tenth Circuit ordered a refund of
the debtors' quarterly fees to the extent they exceeded the lower fees
paid in the Bankruptcy Administrator districts. This Court vacated
that judgment and remanded the case in light of Siegel, and the Tenth
Circuit reinstated its original opinion without alteration.
Held: Prospective parity is the appropriate remedy for the short-lived and
small disparity created by the fee statute held unconstitutional in Siegel.
Pp. 494–504.
(a) Across remedial contexts, “the nature of the violation determines
the scope of the remedy.” Swann v. Charlotte-Mecklenburg Bd. of Ed.,
402 U. S. 1, 16. Three aspects of the Court's holding in Siegel are rele-
vant here. First, the violation identifed was nonuniformity, not high
fees. Second, the fee disparity was short lived, lasting only from 2018
to 2021. Third, the disparity was small: 98% of the relevant class of
debtors still paid uniform fees. Pp. 494–495.

488 UNITED
STATES TRUSTEE v. JOHN Q. HAMMONS
FALL 2006, LLC
Syllabus
(b) To determine the appropriate remedy for this short-lived and
sma
ll disparity, the Court asks “what the legislature would have willed
had it been appr ised of the constitutiona l i nfir mity. ” Sessio ns v.
Morales-Santana, 582 U. S. 47, 74. In cases involving unequal treat-
ment, the Court focuses on two considerations: Congress's “intensity of
commitment” to the more broadly applicable rule, and “the degree of
potential disruption of the statutory scheme that would occur” if the
Court were to extend the exception. Id., at 75. Here, faced with the
short-lived and small fee disparity created by the constitutional viola-
tion identifed in Siegel, Congress would have wanted prospective par-
ity, not a refund or retrospective raising of fees.
To start, Congress has demonstrated intense commitment to the more
broadly applicable rule, higher fees in U. S. Trustee districts. That
commitment stems from Congress's desire for the U. S. Trustee program
to “be funded in its entirety by user fees.” Siegel, 596 U. S., at 469.
In light of this desire, it is not surprising that, in the 2017 fee statute
at issue in Siegel, Congress chose to address a funding shortfall for the
U. S. Trustee program by raising fees on the largest Chapter 11 debtors.
In 2021, when Congress amended the fee statute to require uniform
fees, it kept fees at an elevated level “to further the long-standing goal
of Congress of ensuring that the bankruptcy system is self-funded. ”
§ 2(b), 134 Stat. 5086.
Now consider the disruption that would follow from extending the
exception, lower fees in Bankruptcy Administrator districts. Retro-
spectively lowering fees for all relevant debtors in U. S. Trustee dis-
tricts would cost approximately $326 million. Thus, in mandating a
refund, this Court would transform a program Congress designed to
be self-funding into an enormous bill for taxpayers. On top of that,
respondents' proposed refund would almost certainly exacerbate the ex-
isting fee disparity.
The only remaining question, then, is whether Congress would have
wanted to retrospectively impose higher fees on debtors in Bankruptcy
Administrator districts. The best evidence that Congress would not
want such a remedy is that Congress itself chose not to pursue that course
when amending the fee statute in 2021. Congress's choice makes sense.
Retrospectively raising fees in Bankruptcy Administrator districts
would do nothing to achieve Congress's goal of keeping the U. S. Trustee
program self-funding. What is more, there are serious practical chal-
lenges to a retrospective imposition of higher fees, including the logisti-
cal problems with locating all the former debtors or their successors
who would owe the higher fees. Pp. 495–502.
(c) Relying on a series of cases involving unconstitutional state taxes,
respondents and the dissent claim that due process requires overriding
Congress's clear intent. See, e. g., McKesson Corp. v. Division of Al-
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coholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496
U
. S. 18; Harper v. Virginia Dept. of Taxation, 509 U. S. 86. These
cases, respondents contend, stand for the proposition that unless an “ex-
clusive” predeprivation remedy is both “clear and certain,” Newsweek,
Inc. v. Florida Dept. of Revenue, 522 U. S. 442, 443–444 (per curiam),
due process requires “meaningful backward-looking relief,” McKesson,
496 U. S., at 31. And, they claim, the predeprivation remedy here was
neither exclusive nor clear and certain.
The tax cases, assuming that they are even applicable here, do not
entitle respondents to relief. In those cases, the Court held that the
existence of a predeprivation hearing would be enough to satisfy the
Due Process Clause. See Harper, 509 U. S., at 101. Respondents ac-
knowledge that they had the opportunity to challenge their fees be-
fore they paid them, so due process is satisfed. Respondents misread
this Court's later decisions on bait-and-switch schemes as displacing
that basic holding. To be sure, due process may sometimes constrain
the Court's remedial options. In this case, though, due process does
not mandate any particular remedy. Thus, as the tax cases them-
selves advise, the Court must “implement what the legislature would
have willed.” Levin v. Commerce Energy, Inc., 560 U. S. 413, 427.
Pp. 502–504.
15 F. 4th 1011, reversed and remanded.
Jackson, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Alito, Sotomayor, Kagan, and Kavanaugh, JJ., joined. Gorsuch,
J., fled a dissenting opinion, in which Thomas and Barrett, JJ., joined,
post, p. 505.
Masha G. Hansford argued the cause for petitioner. With
her on the briefs were Solicitor General Prelogar, Principal
Deputy Assistant Attorney General Boynton, Deputy Solic-
itor General Gannon, Mark B. Stern, Jeffrey E. Sandberg,
Ramona D. Elliott, P. Matthew Sutko, Beth A. Levene,
Wendy Cox, and Sumi Sakata.
Daniel L. Geyser argued the cause for respondents. With
him on the brief were Angela M. Oliver, Nicholas J. Zlut-
icky, Zachary H. Hemenway, and Brian E. Cameron.*
*Kyle O. Sollie fled a brief for the Institute for Professionals in Taxa-
tion as amicus curiae urging reversal.
Briefs of amici curiae urging affrmance were fled for the Acadiana
Management Group, LLC, et al. by Bradley L. Drell and Heather M.
Mathews; for the Chamber of Commerce of the United States of America
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490 UNITED
STATES TRUSTEE v. JOHN Q. HAMMONS
FALL 2006, LLC
Opinion of the Court
Justice Jackson delivered the opinion of the Court.
T
wo Terms ago, in Siegel v. Fitzgerald, 596 U. S. 464
(2022), we held that a statute violated the Bankruptcy
Clause's uniformity requirement because it permitted differ-
ent fees for Chapter 11 debtors depending on the district
where their case was fled. See id., at 479–480, and n. 2.
Today, we are asked to determine the remedy for that consti-
tutional violation. We agree with the Government that the
appropriate remedy is prospective parity. Requiring equal
fees for otherwise identical Chapter 11 debtors going for-
ward comports with congressional intent, corrects the consti-
tutional wrong, and complies with due process.
Resisting this conclusion, respondents, a group of Chapter
11 debtors, argue that they are entitled to a refund. But, as
respondents forthrightly concede, adopting their preferred
remedy would require us to undercut congressional intent
and transform, by judicial fat, a program that Congress de-
signed to be self-funding into an estimated $326 million bill
for taxpayers. Neither remedial principles nor due process
requires that incongruous result. We reverse.
I
A
The federal bankruptcy system is administered by two
programs. See id., at 468–470. The U. S. Trustee Pro-
gram, housed within the Department of Justice, administers
88 of the 94 bankruptcy districts. The six remaining dis-
tricts, all in Alabama and North Carolina, are administered
by the Bankruptcy Administrator Program, which the Ad-
ministrative Offce of the U. S. Courts runs under the super-
vision of the Judicial Conference.
by Steven P. Lehotsky, Andrew B. Davis, Jennifer B. Dickey, and Jona-
than D. Urick; for Former Bankruptcy Judges by Roy T. Englert, Jr.,
Robert J. Feinstein, and Jeffrey N. Pomerantz; for MF Global Holdings
Ltd. by Christopher DiPompeo and Jane Rue Wittstein; and for USA
Sales, Inc., by A. Lavar Taylor.
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For our purposes, the most salient difference between
these
two programs is their funding. Congress designed the
U. S. Trustee Program to be entirely self-funded by user fees
paid by debtors. See 28 U. S. C. § 589a(b). By contrast,
Congress supports the Bankruptcy Administrator Program
through its general appropriation for the Judiciary, with fees
used only to offset that funding. See § 1930(a)(7).
Despite these different funding schemes, the fees charged
to debtors in U. S. Trustee and Bankruptcy Administrator
districts were identical between 2001 and 2018. See Siegel,
596 U. S., at 470. During that almost two-decade period,
Congress would set the fling and quarterly fees for U. S.
Trustee districts, and then the Judicial Conference, pursuant
to a standing order, would require Bankruptcy Administra-
tor districts to match them. See ibid. (citing Report of the
Proceedings of the Judicial Conference of the United States
46 (Sept. /Oct. 2001) (Report Proceedings)).
In 2017, facing a funding shortfall for the U. S. Trustee
Program, Congress amended the fee statute to raise fees in
U. S. Trustee districts. See 596 U. S., at 470–471. Specif-
cally, Congress increased quarterly fees for new and pending
Chapter 11 cases in which debtors disbursed $1 million or
more in that quarter. See Div. B, 131 Stat. 1232 (2017 Act).
Consistent with its goal of maintaining a self-funding U. S.
Trustee Program, Congress made the fee increase for large
debtors conditional on the operating fund for the program
falling below $200 million in the prior fscal year. See
Siegel, 596 U. S., at 470–471. That threshold was met in
2017, so, starting in January 2018, fees increased for large
Chapter 11 debtors in U. S. Trustee districts. See ibid.
Despite the Judicial Conference's standing order, though,
fees did not immediately increase in Bankruptcy Administra-
tor districts. See ibid. For reasons that remain obscure,
it was not until October 2018 that the Judicial Conference
increased fees for newly fled cases in Bankruptcy Adminis-
trator districts. See Report Proceedings 11–12 (Sept. 13,
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492 UNITED
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2018). And fees for already pending large Chapter 11 cases
i
n Bankruptcy Administrator districts remained at their 2017
level until Congress mandated equal fees in 2021. See Pub.
L. 116–325, § 3(d)(2), 134 Stat. 5088 (2021 Act). In the in-
terim, a disparity emerged between the fees paid by large
Chapter 11 debtors in U. S. Trustee districts and those paid
by large Chapter 11 debtors in Bankruptcy Administrator
districts. See Siegel, 596 U. S., at 478–479.
B
In Siegel, we traced the origin of that disparity to a single
statutory word. See id., at 479–480. The fee statute passed
by Congress, and in effect at the time of the 2017 increase,
read: “[T]he Judicial Conference of the United States may
require the debtor in a case under chapter 11 of title 11”
in a Bankruptcy Administrator district “to pay fees equal
to those imposed” on otherwise identical debtors in U. S.
Trustee districts. 28 U. S. C. § 1930(a)(7) (emphasis added).
That permissive language, we explained, violated the Consti-
tution's Bankruptcy Clause. Siegel, 596 U. S., at 480, n. 2.
The Bankruptcy Clause empowers Congress “[t]o establish
. . . Laws on the subject of Bankruptcies throughout the
United States,” but it requires that such laws be “uniform.”
Art. I, § 8, cl. 4. Though the Clause “confers broad authority
on Congress,” including the fexibility to “enact geographi-
cally limited bankruptcy laws . . . if it is responding to
a geographically limited problem,” we concluded that the
Clause's grant of power did not extend to the disparate fees
facilitated by the permissive language in the fee statute.
Siegel, 596 U. S., at 476–477. As we explained, Congress
could not constitutionally “treat identical debtors differently
based on an artifcial funding distinction that Congress itself
created.” Id., at 479–480.
Having found a constitutional wrong, we then faced the
question of how to remedy it. We acknowledged three op-
tions: (1) refund fees for those charged more in U. S. Trustee
districts, (2) retroactively extract higher fees from those
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Opinion of the Court
charged less in Bankruptcy Administrator districts, or (3)
require
only prospective parity. See id., at 480. The fnal
option, we noted, was already in effect: By the time Siegel
reached our Court, Congress had replaced the permissive
“may” in the fee statute with a mandatory “shall,” resulting
in equal fees for U. S. Trustee and Bankruptcy Administrator
districts as of April 2021. Id., at 471 (quoting Pub. L. 116–
325, § 3(d)(2), 134 Stat. 5088). But, because the remedial
question had not been passed on below, we remanded for the
Fourth Circuit to address it in the frst instance. See Siegel,
596 U. S., at 481.
C
As in Siegel, this case arises from a Chapter 11 case fled
in a U. S. Trustee district. Cf. id., at 471. In 2016, a group
of 76 legal entities related to a chain of hotels and resorts
fled for bankruptcy in the District of Kansas. Starting in
January 2018, the debtors were subjected to increased quar-
terly fees under the amended fee statute. In March 2020,
the debtors challenged the constitutionality of those fees,
seeking both a refund of fees already paid and a reversion
of future fees to their 2017 level. See Debtors' Motion To
Determine Extent of Liability for Quarterly Fees Payable in
No. 16–21142 (Bkrtcy. Ct. Kan., Mar. 3, 2020), ECF Doc. 2823.
Finding no constitutional violation, the Bankruptcy Court
did not reach the remedial question. See In re John Q.
Hammons Fall 2006, LLC, 618 B. R. 519, 525–526 (Kan.
2020).
The Tenth Circuit reversed. See In re John Q. Hammons
Fall 2006, LLC, 15 F. 4th 1011, 1016 (2021). It anticipated our
holding in Siegel and found that the fee statute permitting non-
uniform fees violated the Bankruptcy Clause. See 15 F. 4th,
at 1025. To remedy that violation, the panel then ordered a
refund of the debtors' quarterly fees so that they equaled
the lower fees the debtors would have paid had their case
been fled in a Bankruptcy Administrator district. See id.,
at 1025–1026. The U. S. Trustee sought certiorari. After
deciding Siegel, we granted the petition, vacated the Tenth
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494 UNITED
STATES TRUSTEE v. JOHN Q. HAMMONS
FALL 2006, LLC
Opinion of the Court
Circuit's judgment, and remanded for further consideration.
596
U. S. 1004 (2022). The Tenth Circuit sought supplemen-
tal briefng, but ultimately reinstated its original opinion
without alteration. See In re John Q. Hammons Fall 2006,
LLC, 2022 WL 3354682, *1 (Aug. 15, 2022). After rehearing
was denied, the U. S. Trustee again petitioned for review.
We granted certiorari to answer the remedial question left
open in Siegel. 600 U. S. ––– (2023).
II
Across remedial contexts, “the nature of the violation
determines the scope of the remedy.” Swann v. Charlotte-
Mecklenburg Bd. of Ed., 402 U. S. 1, 16 (1971); see also
Ayotte v. Planned Parenthood of Northern New Eng., 546
U. S. 320, 328 (2006) (“Generally speaking, when confronting
a constitutional faw in a statute, we try to limit the solution
to the problem”). Accordingly, before we can determine the
appropriate remedy for the Bankruptcy Clause violation in
this case, we must bear down upon the particulars of the
constitutional violation we identifed in Siegel. Three as-
pects of our holding are worth highlighting.
First, the violation we identifed was nonuniformity, not
high fees. There was no doubt raised in Siegel about Con-
gress's power to raise fees for large Chapter 11 debtors.
The constitutional issue arose only because the fee stat-
ute's permissive language effectively “exempted debtors in”
Bankruptcy Administrator districts from paying the new
rates, resulting in a disparity in fees between the two types
of bankruptcy districts. Siegel, 596 U. S., at 468. Though
respondents understandably complain about their higher
payments, our task is not necessarily to reduce them; it is to
remedy the disparity.
1
1
Notably, even with the 2017 Act's increase, large Chapter 11 debtors
in U. S. Trustee districts often paid lower fees, relative to their disburse-
ments, than much smaller debtors. For example, fees for those with dis-
bursements over $1 million, like respondents, were capped at 1% of dis-
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495
Opinion of the Court
Second, the fee disparity at issue here was short lived. It
began
in January 2018. By October 2018, the Judicial Con-
ference required newly fled Chapter 11 cases in Bankruptcy
Administrator districts to pay the higher fees. And starting
in April 2021, Congress required uniform fees for pending
cases too. Due to these policy shifts by the Judicial Confer-
ence and Congress, a large Chapter 11 debtor was subject
to, at most, three years and three months of nonuniform
treatment.
Finally, the disparity was small. The Government esti-
mates (and respondents do not dispute) that, during the rele-
vant period, only about 50 out of the more than 2,000 cases
involving large Chapter 11 debtors were fled in Bankruptcy
Administrator districts—a mere 2%. See Brief for Peti-
tioner 11; Reply Brief 16–19. Therefore, even when the
statute unconstitutionally permitted the complained-of fee
disparity, 98% of the relevant class of debtors still paid uni-
form fees.
In short, the constitutional violation we identifed in Siegel
created a monetary disparity in bankruptcy fees that was
short lived and small. With the limited nature of the consti-
tutional problem in mind, we now turn to the question of
how to remedy it.
III
A
“[T]he touchstone for any decision about remedy is legisla-
tive intent.” Ayotte, 546 U. S., at 330. Thus, the key ques-
tion in determining how to remedy a constitutional violation
wrought by the legislative process is always “ `what the leg-
islature would have willed had it been apprised of the consti-
tutional infrmity.' ” Sessions v. Morales-Santana, 582 U. S.
47, 73–74 (2017) (quoting Levin v. Commerce Energy, Inc.,
bursements, while fees for those debtors disbursing $15,000 or less were
set at a fat rate of $325, for a minimum of about 2.2%. See § 1004(a)(2),
131 Stat. 1232, 28 U. S. C. § 1930(a)(6)(A).
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496 UNITED
STATES TRUSTEE v. JOHN Q. HAMMONS
FALL 2006, LLC
Opinion of the Court
560 U. S. 413, 427 (2010)). In cases involving unequal treat-
ment,
answering this question generally leads to a focus on
two considerations: Congress's “ ` “intensity of commit-
ment” ' ” to the more broadly applicable rule, and “ ` “the de-
gree of potential disruption of the statutory scheme that would
occur” ' ” if we were to extend the exception. Morales-
Santana, 582 U. S., at 75 (quoting Heckler v. Mathews, 465
U. S. 728, 739, n. 5 (1984)). In light of our limited institu-
tional competence, we are also cognizant that Congress likely
would not have intended relief that is impractical or unwork-
able. See, e. g., Seila Law LLC v. Consumer Financial Pro-
tection Bureau, 591 U. S. 197, 236–237 (2020) (opinion of Rob-
erts, C. J.); Los Angeles Dept. of Water and Power v.
Manhart, 435 U. S. 702, 718–723 (1978). And we must keep
in mind that our ultimate aim is to remedy the constitutional
wrong consistent with congressional intent, not to provide
the complaining parties' preferred form of relief. See,
e. g., Barr v. American Assn. of Political Consultants, Inc.,
591 U. S. 610, 634–635 (2020) (opinion of Kavanaugh, J.);
Morales-Santana, 582 U. S., at 77, n. 29.
As respondents acknowledge, “Congress's intentions here
were unmistakable. ” Brief for Respondents 31. Faced
with the constitutional violation we identifed in Siegel, Con-
gress would have wanted prospective parity, not a refund or
retrospective raising of fees. In other words, to remedy the
fee disparity, Congress would have wanted to impose equal
fees in all districts going forward. This conclusion is clear
from the intensity of Congress's commitment to raising fees
in U. S. Trustee districts, the extreme disruption a refund
would cause to the bankruptcy system, and Congress's own
decision to remedy the wrong we face by imposing equal fees
going forward. We discuss each of these considerations in
turn.
Start with Congress's commitment to higher fees in U. S.
Trustee districts. Congress designed the U. S. Trustee Pro-
gram to “be funded in its entirety by user fees.” Siegel, 596
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U. S., at 469. Chapter 11 cases play a central role in achiev-
i
ng that goal. Congress required 100% of Chapter 11 quar-
terly fees to be deposited in the U. S. Trustee's operating
fund. § 589a(b)(5).
2
By 2017, almost two-thirds of the U. S.
Trustee Program's funding came from Chapter 11 fees alone.
See H. R. Rep. No. 115–130, p. 7, n. 26 (2017). It is not sur-
prising, then, that when there was a funding shortfall for the
U. S. Trustee Program, Congress chose to address it by rais-
ing fees on the largest Chapter 11 debtors. See Siegel, 596
U. S., at 470.
In 2021, when Congress amended the fee statute, it re-
moved any doubts about its commitment to raising fees in
order to keep the U. S. Trustee Program self-funded. The
statute specifcally stated that the purpose of keeping fees
at an elevated level was “to further the long-standing goal
of Congress of ensuring that the bankruptcy system is self-
funded, at no cost to the taxpayer.” 2021 Act § 2(b); see also
§ 2(a)(1). Respondents point to nothing—in the history of
the bankruptcy system, the design of the U. S. Trustee Pro-
gram, or the 2017 or 2021 Acts—that cuts against Congress's
stated commitment to having higher fees for large Chapter
11 debtors in U. S. Trustee districts.
Now consider the fipside of this clear congressional com-
mitment: the disruption that would follow from granting re-
spondents' request to refund their fees. Our imposition of
a refund would signifcantly undermine Congress's goal of
keeping the U. S. Trustee Program self-funded. Respond-
ents do not dispute that refunding all large Chapter 11 debt-
ors in U. S. Trustee districts would be expensive; the Gov-
ernment estimates it would cost approximately $326 million.
See Brief for Petitioner 35–36; see also Brief for Respond-
ents 21, and n. 6. If the Government's estimate is even close
2
As part of the 2017 Act, Congress committed 98% of the money that
the fee increase generated to funding the U. S. Trustee Program; the re-
maining 2% was deposited in the general fund of the Treasury. See
§ 1004, 131 Stat. 1232.
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to correct, the cost of the refund would greatly exceed the
$200
million threshold Congress selected in 2017 to signal
fscal distress in the U. S. Trustee Program and trigger
higher fees. See Siegel, 596 U. S., at 470–471. Thus, in
mandating such a remedy, we would transform a program
Congress designed to be self-funding into an enormous bill
for taxpayers. It is hard to imagine a remedy more diamet-
rically opposed to clear congressional intent.
On top of that, respondents' proposed refund would almost
certainly exacerbate the small fee disparity we are attempt-
ing to remedy. As already noted, respondents are among
the 98% of large Chapter 11 debtors who paid higher fees
starting in 2018, just as Congress wanted. By refunding
them, we would add to the past nonuniformity by increasing
the tiny percentage of debtors—currently 2%—who paid
lower fees. As the Government aptly notes, even if 95% of
the debtors in U. S. Trustee districts that paid higher fees
received a refund, we would still end up creating a greater
overall disparity than what resulted from Congress's re-
quirement of prospective parity. See Brief for Petitioner 40.
Of course, it is true that the disparity could be entirely
eliminated if all the debtors who paid higher fees were given
a refund. But that theoretical possibility blinks reality.
The Government estimates that 85% of the large Chapter 11
cases subject to higher fees between January 2018 and April
2021 have closed, and some of those debtors have been liqui-
dated or otherwise ceased to exist. See Reply Brief 20.
Respondents offer no meaningful path to reducing the small
existing disparity through refunds. Instead, they encourage
us to defy congressional intent, disrupt the U. S. Trustee
Program's self-funding mandate, and divert the attendant
costs to taxpayers—all to give them a remedy that will make
the disparity caused by the constitutional violation worse.
The only real question, then, is whether Congress would
have wanted to retrospectively impose higher fees on debt-
ors in Bankruptcy Administrator districts. The best evi-
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499
Opinion of the Court
dence that Congress did not intend such a remedy is that
Congress
itself chose not to pursue that course. In the 2021
Act, as respondents acknowledge, “Congress revised the fee
scheme to address this very issue, and it did so by mandating
equal fees prospectively only.” Brief for Respondents 31
(citing Pub. L. 116–325, §§ 3(d)(2), 3(e)(2)(B), 134 Stat. 5088–
5089); see also 28 U. S. C. § 1930(a)(6)(B)(ii)(II).
Congress's choice makes sense. Because fees collected in
Bankruptcy Administrator districts go toward offsetting the
Judiciary's appropriation, not to supporting the U. S. Trustee
Program, retrospectively raising fees in Bankruptcy Ad-
ministrator districts would do nothing to achieve Congress's
goal of keeping the U. S. Trustee Program self-funding. See
§ 1930(a)(7). Thus, with the 2021 Act, Congress evinced a
clear desire to comply with the constitutional mandate of uni-
formity by requiring prospective parity, but it reasonably
chose not to impose higher fees retrospectively in Bank-
ruptcy Administrator districts.
What is more, there are serious practical challenges to a
retrospective imposition of higher fees. As in U. S. Trustee
districts, many of the debtors who paid lower fees in Bank-
ruptcy Administrator districts have exited bankruptcy or
ceased to exist. See Brief for Respondents 38–39. Indeed,
the Government estimates that only 10 of the roughly 50
cases involving debtors who paid lower fees are still open.
See Reply Brief 17–18. Moreover, locating all the former
debtors or their successors would not end the practical prob-
lems. The Government would be forced to extract fees from
funds that might already be disbursed, inevitably prompting
additional litigation and even the unwinding of closed cases.
See ibid. And all that effort would be directed against par-
ties who followed the law and complied with the fee schedule
imposed by the Judicial Conference under the 2017 Act.
Our remedial principles do not require us to follow that
unintended, impractical course. Faced with far more seri-
ous dignitary harms than those implicated by a small and
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short-lived disparity in bankruptcy fees for large debtors, we
have
deemed prospective parity suffcient to remedy uncon-
stitutional differences in treatment. See Heckler, 465 U. S.,
at 740, n. 8 (“[W]e have often recognized that the victims of
a discriminatory government program may be remedied by
an end to preferential treatment for others”); see also, e. g.,
Morales-Santana, 582 U. S., at 77 (sex discrimination);
Manhart, 435 U. S., at 721 (same). Here, Congress would
have wanted prospective parity, and that remedy is suffcient
to address the small, short-lived disparity caused by the con-
stitutional violation we identifed in Siegel.
B
The dissent offers three primary responses to our analysis
thus far. First, the dissent argues that congressional intent
is irrelevant, and we should simply defer to the plaintiffs'
request for damages. See post, at 512, 514 (opinion of Gor-
such, J.). For their part, respondents do not claim that this
is how our remedial precedent works; as already noted, they
agree that “courts crafting constitutional remedies consult
`the legislature's intent.' ” Brief for Respondents 31 (quot-
ing Morales-Santana, 582 U. S., at 73). That's for good rea-
son: The dissent's argument turns on a misapprehension of
the constitutional wrong at issue here. The remedial ques-
tion before us is not whether to pay damages or not; it is
how to address a short-lived and small disparity. “How
equality is accomplished—by extension or invalidation of
the unequally distributed beneft or burden, or some other
measure—is a matter on which the Constitution is silent.”
Levin, 560 U. S., at 426–427. So, when seeking to remedy
an unconstitutional disparity, rather than divining the right
answer ourselves or picking a party's preferred form of relief
(which may, as in this case, make the disparity worse), we
generally look to the intent of the Legislature. See id., at
427–428.
Second, the dissent argues that, if we are to rely on con-
gressional intent, it actually points to a refund. See post, at
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516–517. For support, the dissent cites only to the fscal
year
2020 appropriations law. See ibid. (citing 133 Stat.
2398). But, again, there is a reason that respondents do not
advance this argument; in fact, they concede that “Congress
. . . address[ed] this very issue” and mandated prospective
equalization of fees. Brief for Respondents 31. The dis-
sent cites boilerplate language that simply allows the U. S.
Trustee to respond effectively to commonplace overpay-
ments by debtors. See Pub. L. 116–93, 133 Stat. 2398
(“[D]eposits . . . and amounts herein appropriated shall be
available in such amounts as may be necessary to pay re-
funds due depositors”). Such statements have been part of
every appropriations law for years, including before the dis-
parity at issue here came into existence. See, e. g., 131 Stat.
195 (2017 appropriations law); 129 Stat. 2298 (2016 appropria-
tions law). Far from confrming a congressional intent to
authorize an estimated $326 million refund here, the broader
provision the dissent invokes underscores that a refund
would send the U. S. Trustee Program into fscal freefall,
contradicting Congress's intent to have the program be self-
funding. See 133 Stat. 2398 (estimating fee revenue and
structuring appropriations “so as to result in a fnal fscal
year 2020 appropriation from the general fund estimated
at $0”).
Finally, the dissent suggests we need not address congres-
sional intent at all, because the Government actually prom-
ised these respondents a refund. See, e. g., post, at 505, 509–
511, 521–522, n. 7. Once again, the dissent relies on an argu-
ment respondents have not advanced in this Court. And,
once again, the dissent might have done better following re-
spondents' cue. The relied-upon passage in the Govern-
ment's bankruptcy court fling is nothing more than a request
by the Government not to be forced to provide any remedy
until after it has exhausted all appeals. See Objection of the
United States to Debtor's Motion To Determine Extent
of Liability for Quarterly Fees Payable in No. 16–21142
(Bkrtcy. Ct. Kan., Apr. 27, 2020), ECF Doc. 2868, pp. 59–61.
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Read fairly, the Government promised only what you would
expec
t: that it would comply with a fnal judgment. See
ibid.; see also Reply Brief 7, n. 1 (“Although the government
does not believe a refund is the appropriate remedy, if it is
subject to a judgment directing it to pay a refund, it will of
course comply”).
In sum, while the dissent invents new arguments to arrive
at its favored outcome, we prefer to stick with the parties
and our controlling precedent.
3
IV
Respondents and the dissent ask us to override Congress's
clear intent because, they claim, due process requires it.
See post, at 518–521. To advance this argument, they rely
on a series of cases involving unconstitutional state taxes.
See, e. g., McKesson Corp. v. Division of Alcoholic Bever-
ages and Tobacco, Fla. Dept. of Business Regulation, 496
U. S. 18 (1990); Harper v. Virginia Dept. of Taxation, 509
U. S. 86 (1993); Reich v. Collins, 513 U. S. 106 (1994); News-
week, Inc. v. Florida Dept. of Revenue, 522 U. S. 442 (1998)
(per curiam). In respondents' view, these cases stand for
the proposition that “due process requires `meaningful
backward-looking relief ' unless an `exclusive' predeprivation
remedy is both `clear and certain.' ” Brief for Respondents
22 (frst quoting Brief for Petitioner 29, in turn quoting McK-
esson, 496 U. S., at 31, then quoting Newsweek, 522 U. S., at
443–444; capitalization and boldface deleted). Respondents
claim that because the predeprivation remedy here was nei-
ther exclusive nor clear and certain, they are entitled to a
refund. See Brief for Respondents 22–28.
3
The dissent attempts, in various additional ways, to cabin, qualify, or
contradict our analysis, including by wrongly suggesting that it rests on
the party presentation principle. See post, at 516, n. 4. Readers are re-
minded that the dissent is “just that.” National Pork Producers Council
v. Ross, 598 U. S. 356, 389, n. 4 (2023) (opinion of Gorsuch, J.).
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503
Opinion of the Court
We disagree. To start, we note that the tax cases arrived
at
their holdings only after scrutinizing close to a century of
tax-specifc jurisprudence and carefully analyzing the unique
interests the taxation context involves, including the Gov-
ernment's “exceedingly strong interest in fnancial stability”
and the attendant need for prompt payment and postdepriva-
tion protections. See McKesson, 496 U. S., at 37; see also
id., at 32–38. The dissent does not dispute this, nor does it
adequately explain why we deemed such history and context
so central to our holdings in the tax cases. See post, at 520–
521. For their part, respondents simply ignore this context
entirely. Instead, they replace the word “tax” with “fee,”
see Brief for Respondents 22, and assert that the constitu-
tional holding of the tax cases applies to any case involving
“monetary injury,” including those arising from the volun-
tary, fee-for-service bankruptcy system, id., at 9.
No matter, though. Even assuming that the tax cases
apply, respondents are not entitled to relief under them. We
held in those cases that if there was “ `a meaningful opportu-
nity for taxpayers to withhold contested tax assessments and
to challenge their validity in a predeprivation hearing,' the
`availability of a predeprivation hearing constitute[d] a pro-
cedural safeguard . . . suffcient by itself to satisfy the Due
Process Clause.' ” Harper, 509 U. S., at 101 (quoting McKes-
son, 496 U. S., at 38, n. 21). Here, respondents acknowledge
that they had the opportunity to challenge their fees before
they paid them. See Brief for Respondents 25 (“[T]he same
bankruptcy procedures are open and available before or after
paying an invalid fee. Both are equally acceptable for a
party to assert and preserve its rights”). Under the tax
cases, then, respondents are not entitled to any particular
remedy.
Respondents and the dissent misread our later decisions
as displacing that basic holding. In subsequent cases, we
addressed situati ons where a State “reconfig ure[d] its
scheme, unfairly, in mid-course—to `bait and switch' ” tax-
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payers out of a refund remedy guaranteed under state law.
Re
ich, 513 U. S., at 111; see also Newsweek, 522 U. S., at
444. We held that States could not hold open a postdepriva-
tion refund remedy to encourage payment and then take it
away after taxpayers paid. See Reich, 513 U. S., at 111–112;
Newsweek, 522 U. S., at 444–445. In this case, though, there
was neither a guaranteed refund remedy nor a bait and
switch. Nothing in the Bankruptcy Code promises a refund
to those who successfully challenge their fees. And re-
spondents point to no previously available statutory remedy
of which the Government has now deprived them. So those
later cases do not help respondents either.
With all that said, nothing we say here should be taken to
diminish or depart from the holdings of the tax cases as they
apply in the tax context. Nor do we mean to suggest that
congressional intent is an entirely unchecked guide in our
remedial analysis for constitutional violations. We cannot
remedy an old constitutional problem by creating a new one,
so due process and other constitutional protections undoubt-
edly will limit the possible remedies in many cases. See
Barr, 591 U. S., at 633. Here, though, due process does not
mandate any particular remedy. Therefore, as the tax cases
themselves advise, we must, “within the bounds of [our] insti-
tutional competence, . . . implement what the legislature
would have willed.” Levin, 560 U. S., at 427.
***
Faced with the unconstitutional nonuniformity we recog-
nized in Siegel, Congress would have provided for uniform
fees going forward. That remedy cures the constitutional
violation, and due process does not require another result.
The judgment of the Court of Appeals for the Tenth Circuit
is reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
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505
Gorsuch, J., dissenting
Justice Gorsuch, with whom Justice Thomas and Jus-
tice
Barrett join, dissenting.
What's a constitutional wrong worth these days? The
Court's answer today seems to be: not much. Between
2018 and 2020, the government charged fees to bankruptcy
debtors that varied arbitrarily from region to region, leaving
some debtors millions of dollars worse off than others. Two
years ago, we held that this geographically discriminatory
treatment violated the Constitution's Bankruptcy Clause—a
provision that, we stressed, was not “toothless.” Siegel v.
Fitzgerald, 596 U. S. 464, 468 (2022). Today, however, the
Court performs a remedial root canal, permitting the gov-
ernment to keep the cash it extracted from its unconstitu-
tional fee regime.
The path the Court follows is as striking as its destination.
Never mind that a refund is the traditional remedy for un-
lawfully imposed fees. Never mind that the government
promised to supply precisely that relief if the debtors in this
case prevailed, as they have, in their constitutional challenge.
Never mind that backtracking on that promise raises sepa-
rate due process concerns. As the majority sees it, supply-
ing meaningful relief is simply not worth the effort. Re-
spectfully, that alien approach to remedies has no place in
our jurisprudence.
I
A
Certainty is the lifeblood of bankruptcy. For the system
to function, a debtor must be certain that putting all his
assets on the table for creditors will afford him a fresh start.
So too must a creditor have certainty about what priority
his loan may or may not enjoy in the event of a borrower's
bankruptcy. Recognizing as much, our Constitution grants
Congress power to establish “uniform Laws on the subject
of Bankruptcies throughout the United States.” Art. I, § 8,
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cl. 4; see 3 J. Story, Commentaries on the Constitution of the
U
nited States §§ 1101–1103, pp. 4–8 (1833). That provision
affords Congress some “fexibility” in drafting bankruptcy
laws, but it does not tolerate laws that treat parties in bank-
ruptcy differently based on the “arbitrary” happenstance of
their “geograph[y].” Siegel, 596 U. S., at 476. Laws like
those, this Court has held, do not apply “uniform[ly] . . .
throughout the United States.”
Our case arises from a violation of that uniformity require-
ment. In much of the country, the United States Trustee
Program, housed in the Department of Justice, handles ad-
ministrative tasks once handled by bankruptcy courts. Id.,
at 468. The Trustee Program is funded by quarterly fees
paid principally “by debtors who fle cases under Chapter 11
of the Bankruptcy Code.” Id., at 469; see 28 U. S. C.
§ 1930(a)(6)(A). Thanks to a quirk of history, however, six
federal judicial districts are not in the Trustee Program.
Instead, they are part of the so-called Administrator Pro-
gram, overseen by the Judicial Conference of the United
States and “funded by the Judiciary's general budget.”
Siegel, 596 U. S., at 469. In those districts, Congress did not
require debtors to pay fees “at all.” Ibid. That is, until a
lower court highlighted the disparity and held it violated the
Bankruptcy Clause. St. Angelo v. Victoria Farms, Inc., 38
F. 3d 1525, 1529–1532 (CA9 1994).
In 2000, Congress implemented a fx. It provided that
“the Judicial Conference of the United States may require”
debtors in Administrator Program districts “to pay fees
equal to those” debtors pay in Trustee Program districts.
114 Stat. 2412 (enacting § 1930(a)(7)). Although the statu-
tory language (“may require”) was permissive, the Judicial
Conference took the hint and began charging the same fees
as those levied in Trustee Program districts, thus putting all
debtors on equal footing. Siegel, 596 U. S., at 470.
The solution didn't last. Come 2017, Congress enacted
temporary measures to boost Trustee Program funding.
There, Congress directed that, whenever Trustee Program
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funds dropped below $200 million, certain bankruptcy es-
t
ates had to pay new and much higher quarterly fees (where
some once paid $30,000, for example, the law now required
them to pay up to $250,000). § 1004, 131 Stat. 1232; see
Siegel, 596 U. S., at 470. The 2017 Act “applied to all pend-
ing cases” in Trustee Program districts. Id., at 471. But
for reasons not entirely clear from the record before us,
the Judicial Conference didn't immediately follow suit. It
waited until October 2018 to implement those changes in Ad-
ministrator Program districts—and even then applied them
“only to newly fled cases.” Ibid.
Ultimately, Congress had to intercede again. At the close
of 2020, Congress withdrew its direction to the Judicial Con-
ference providing that it “may require” debtors in Adminis-
trator Program districts to pay the same fees as debtors in
Trustee Program districts. In its place, Congress issued a
more emphatic instruction, telling the Judicial Conference
that it “shall” ensure that quarterly fees remain “consistent
across all Federal judicial districts.” §§ 2–3, 134 Stat.
5086, 5088.
But if that solved the problem going forward, it left an-
other question unanswered: what to do about Trustee Pro-
gram debtors who had paid more in fees between 2018 and
2020 than did their similarly situated Administrator Program
counterparts. Many Trustee Program debtors brought chal-
lenges alleging that the fees they had paid violated the uni-
formity requirement of the Bankruptcy Clause. And in
2022, we agreed with them, holding that the debtors before
us had been subject to “arbitrary geographically disparate”
fees in violation of the Constitution. Siegel, 596 U. S., at
476. After reaching that conclusion, we remanded the case
then before us for a lower court to determine “the appro-
priate remedy . . . in the frst instance.” Id., at 480–481.
B
John Q. Hammons Hotels & Resorts found itself in the
middle of this mess. In 2016, various entities affliated with
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Hammons fled Chapter 11 bankruptcy petitions in the Dis-
tr
ict of Kansas, a Trustee Program district. In re John Q.
Hammons Fall 2006, LLC, 15 F. 4th 1011, 1018 (CA10 2021).
The cases remained pending after the 2017 Act kicked in
and before the 2020 Act mandated fee uniformity across the
Nation. So Hammons was charged higher quarterly fees
than debtors in Administrator Program districts.
Hammons did not challenge the fee disparity immediately.
That would have come at a heavy cost: Until Hammons paid
its fees in full, the bankruptcy court could not confrm Ham-
mons's plan of reorganization, a vital step in the Chapter 11
process. See 11 U. S. C. § 1129(a)(12). Worse, as a debtor
defaulting on its fees, Hammons would also have run the
risk of being kicked out of the Chapter 11 process entirely.
§§ 1112(b)(1), (b)(4)(K).
So Hammons waited until early 2020. By that time the
bankruptcy court had confrmed its plan. See Debtors' Mo-
tion To Determine Extent of Liability for Quarterly Fees in
No. 16–21142 (Bkrtcy. Ct. Kan., Mar. 3, 2020), ECF Doc. 2823,
p. 5. But by that time Hammons had also “paid over $2.5
million more in quarterly fees than [it] would have paid had
[it] fled in” an Administrator Program district. 15 F. 4th,
at 1018. Arguing that this discriminatory treatment was
unconstitutional under the Bankruptcy Clause, Hammons
sought a refund of those excess payments. ECF Doc. 2823,
at 8.
The U. S. Trustee opposed the request. But he promised
that “[i]f [Hammons] prevail[ed] after all levels of review on
[its] claim that [the fee disparity] is unconstitutional, the gov-
ernment [would] refund fees to the extent they were over-
paid.” Objection of the United States to Debtor's Motion To
Determine Extent of Liability for Quarterly Fees in No. 16–
21142 (Bkrtcy. Ct. Kan., Apr. 27, 2020), ECF Doc. 2868, p. 59.
As reassurance, the U. S. Trustee stressed that Congress had
“authorized payments of refunds . . . in its most recent annual
appropriation law.” Id., at 59–60 (citing 133 Stat. 2398).

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This long-promised payment eventually came due. Antic-
ipati
ng our decision in Siegel by a year, in 2021 the Tenth
Circuit held that Hammons had been subjected to an arbi-
trary and geographically disparate fee forbidden by the
Bankruptcy Clause. 15 F. 4th, at 1023. By way of remedy,
that court held the Trustee to his promise, ordering him to
pay Hammons a refund of the fees it had paid in excess of
those it would have owed in an Administrator Program dis-
trict during the same period. Id., at 1026. This Court
granted certiorari to address what remedy is due debtors,
like Hammons, who were charged unconstitutional fees be-
tween 2018 and 2020—the question we left open in Siegel.
600 U. S. ––– (2023).
II
A
Where does that leave us? Before this Court, the U. S.
Trustee does not question Hammons suffered a constitu-
tional injury in having to pay nonuniform fees. That much
was settled by Siegel. Nor does the U. S. Trustee dispute
he promised to refund Hammons its overpayments should it
prevail—as it has now prevailed—on the merits of its consti-
tutional claim. Everyone agrees those fees total approxi-
mately $2.5 million. Even more than that, it is undisputed
Congress has already taken the affrmative step of appropri-
ating funds for refunds in cases just like this one. With all
that beyond dispute, the next step should be too: Just as
the Tenth Circuit held, the U. S. Trustee should be ordered
to make Hammons whole for its injury and pay the prom-
ised refund.
Traditional remedial principles command that result. No
one argues, for example, that sovereign immunity bars this
suit or others like it. Nor is there a question Hammons
sought a refund in a timely fashion. As the U. S. Trustee
puts it, Congress has allowed “[t]he amounts of the payments
[to] be litigated at the time of the budget submission; by fl-
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ing an adversary proceeding to challenge fees at any time
wh
ile the bankruptcy case is ongoing; or by fling a district
court action after the case has terminated.” Brief for Peti-
tioner 5–6. And Hammons brought its fee challenge while
its bankruptcy case was still ongoing. It is long since set-
tled, too, that where (as here) Congress has provided “a gen-
eral right to sue” for the invasion of a legal right but has not
specifed any particular form of relief, “federal courts may
use any available remedy to make good the wrong done.”
Barnes v. Gorman, 536 U. S. 181, 189 (2002) (internal quota-
tion marks omitted). And where (as here), someone pays
money—or has money withheld from him—because of invalid
government action, the most appropriate remedy is mone-
tary relief.
Centuries of judicial practice confir m as much. Th is
Court has long said that the “[a]ppropriate remedy” for “du-
ties or taxes erroneously or illegally assessed . . . is an act-
ion of assumpsit for money had and received.” Philadel-
phia v. Collector, 5 Wall. 720, 731 (1867). We have held that
“the law . . . will compel restitution or compensation” “if
a county obtains the money or property of others without
authority.” Louisiana v. Wood, 102 U. S. 294, 299 (1880) (in-
ternal quotation marks omitted). And on the theory that
“the appropriate remedy” for unconstitutional discrimination
“is a mandate of equal treatment,” Heckler v. Mathews
465 U. S. 728, 740 (1984) (emphasis deleted), we have “regu-
larly . . . affrmed District Court judgments ordering that
welfare benefts be paid to members of an unconstitutionally
excluded class,” Califano v. Westcott, 443 U. S. 76, 90
(1979).
Our longstanding precedents should make short work of
this case. Hammons remitted to the U. S. Trustee more
than $2.5 million in “overpayments.” Siegel, 596 U. S.,
at 472 (internal quotation marks omitted). Those overpay-
ments were exacted in violation of the Bankruptcy Clause.
To remedy the violation, Hammons is entitled to a refund—
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B
D
espite all this, the government now tries to backtrack.
Yes, it promised to pay should Hammons prove a constitu-
tional injury. Yes, Hammons has now done exactly that,
consistent with Siegel. Yes, Congress has appropriated
sums to make Hammons and others like it whole. And, yes,
traditional remedial principles would seem to dictate just
that form of relief. Still, the government insists, it should
not be forced to pay. It's an astonishing claim, made all the
more astonishing by the fact a majority of the Court goes
along with it.
How do they get there? To determine the appropriate
remedy for Hammons's constitutional injury, the government
and majority reason, we “must adopt the remedial course
Congress likely would have chosen had it been apprised of
the constitutional infrmity.” Brief for Petitioner 14 (inter-
nal quotation marks omitted). And, they continue, had Con-
gress known in 2017 that the disparate fee arrangement was
unconstitutional, it would have responded by imposing
higher fees on debtors in the Administrator Program dis-
tricts. Id., at 14–15. And, the government and majority
say, “[t]he most appropriate way to effectuate that remedy
is on a purely prospective basis”—ensuring that fees are
“uniform going forward.” Id., at 20. Of course, Congress
already provided just this prospective relief in the 2020 Act.
So really, the government and majority conclude, that means
“no further relief is required.” Ibid.; see ante, at 495–500.
Presto: No refund for Hammons. It is a line of reasoning
as bold as it is untenable.
1
1
In the alternative, the government contends, the Court should “direct
the Judicial Conference to . . . collect increased fees from” debtors in Ad-
ministrator Program districts that did not pay the increased fees. Brief
for Petitioner 34. Rightly, the Court declines this invitation. See ante,
at 499–500. The Judicial Conference is not a party to this case, so we lack
power to enter an order that would bind it. And shaking down debtors—
many of whom are no longer in Chapter 11 proceedings—for additional
fees many years after the fact would raise serious due process concerns.
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1
St
art with the government and majority's major premise:
the notion that our only proper role is to speculate about—
and then give effect to—the course of action Congress would
have taken to address the constitutional injury its fee regime
imposed had it been warned in advance. Consider what that
would mean in a more familiar context. Suppose you suf-
fered some form of arbitrary and unlawful discrimination in
the workplace and sued your employer for damages. In re-
sponse, suppose your employer reassured you that, had it
known beforehand what the incident would mean for its wal-
let, it would have taken steps to avoid the incident—and it
promises to do better in the future. In what world does
your employer's promise of a prospective-only remedy do
anything to redress your past injuries? And why would it
matter what the employer might have done differently?
None of that comports with traditional remedial principles.
A promise of fee uniformity going forward may prevent fu-
ture discrimination between debtors. But it does nothing
to remedy fees unlawfully exacted in the past. Far from an
“appropriate remedy,” the majority's prospective remedy for
a past injury is no remedy at all. By overlooking the (obvi-
ous) distinction between prospective and retrospective relief,
the majority defes this Court's teaching that, in cases like
this one, “effective relief consists of damages, not an injunc-
tion.” Tanzin v. Tanvir, 592 U. S. 43, 51 (2020).
Nor is it sensible to ask what remedy the government
might prefer. This Court has long held that, in our legal
system, it is the plaintiff, not the defendant, who “has a right
to choose” what form of legally permissible relief he will
seek. Twist v. Prairie Oil & Gas Co., 274 U. S. 684, 689
(1927). And for just as long we have considered irrelevant
a defendant's plea that, if he had known what he was doing
was wrong, “he would have pursued a different course of
action within the law.” Corsicana Nat. Bank of Corsicana
v. Johnson, 251 U. S. 68, 88 (1919). Entertaining that kind
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of “hypothesis,” we have explained, “would be an unwar-
ranted
resort to fction in aid of a wrongdoer, and at the
expense of the party injured.” Ibid.
Seeking a way around these problems and following the
government's lead, the majority points to cases in which
plaintiffs sought prospective equitable relief from an uncon-
stitutional law. See Brief for Petitioner 14–15.
2
And in
that posture, those cases indicate, the Court has sometimes
thought it appropriate to ask how much of the challenged
statute it should declare inoperative going forward: Should
the whole statute, or only parts of it, be held unenforceable
in the future?
That question, the Court has sometimes said, poses one of
“severability.” Barr v. American Assn. of Political Con-
sultants, Inc., 591 U. S. 610, 614 (2020) (opinion of Kava-
naugh, J.); see Ayotte v. Planned Parenthood of Northern
New Eng., 546 U. S. 320, 331–332 (2006). Sometimes, Con-
gress will include an express severability clause providing
that the unconstitutionality of any one provision will not pre-
clude the enforcement of others going forward. Barr, 591
U. S., at 623. But what happens when a statute contains no
such provision? In cases like that, this Court has, from time
to time, resorted to asking the hypothetical question: What
would Congress “have willed” about the law's future applica-
tion had it foreseen its constitutional defect? Levin v. Com-
merce Energy, Inc., 560 U. S. 413, 427 (2010).
So, for example, in Sessions v. Morales-Santana, 582 U. S.
47 (2017), the Court faced a statute that supplied a faster
path to citizenship for children born abroad to American
mothers than for those born abroad to American fathers.
2
See Barr v. American Assn. of Political Consultants, Inc., 591 U. S.
610, 617 (2020) (opinion of Kavanaugh, J.) (seeking a declaration); Ses-
sions v. Morales-Santana, 582 U. S. 47, 77 (2017) (grant of citizenship);
Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 325
(2006) (declaration and injunction); Levin v. Commerce Energy, Inc., 560
U. S. 413, 419 (2010) (same).
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STATES TRUSTEE v. JOHN Q. HAMMONS
FALL 2006, LLC
Gorsuch, J., dissenting
Id., at 51. The Court held that law violated the Equal Pro-
tec
tion Clause. Id., at 72. To resolve how the law should
operate going forward consistent with the Constitution, the
Court asked whether Congress would have preferred the
“ `withdrawal of benefts' ” from children of American moth-
ers or the “ `extension of benefts' ” to children of American
fathers, and chose the former option. Id., at 73.
3
None of that, however, has anything to do with our case.
Hammons seeks damages to remedy a past violation. The
company does not seek from us any form of prospective re-
lief. As a result, we have no occasion to take a scalpel to
Congress's work. We do not face anything like the question
whether to extend or withdraw benefts to ensure a statute's
constitutional operation going forward. Indeed, attempting
to do so in this case would be utterly pointless, for in 2020
Congress already modifed the challenged provision to re-
move its constitutional infrmity going forward. And just
because future parties will not be injured does nothing to
erase the fact that parties injured by past misconduct are
entitled to relief.
The decisions the majority relies upon only confrm the
point. Take Morales-Santana. While the Court consulted
hypothetical legislative intent to resolve a question about the
scope of prospective relief, it also acknowledged limits on
3
Proceeding this way—asking what a hypothetical Congress might have
done (but didn't do)—has drawn its fair share of criticism, including from
Members of today's majority, as beyond the scope of the judicial power.
See, e. g., Murphy v. National Collegiate Athletic Assn., 584 U. S. 453,
486–488 (2018) (Thomas, J., concurring); Barr, 591 U. S., at 625 (Kava-
naugh, J., joined by Roberts, C. J., and Alito, J.) (“[C]ourts are not
well equipped to imaginatively reconstruct a prior Congress's hypothetical
intent”); id., at 652–653 (Gorsuch, J., concurring in judgment in part and
dissenting in part); United States v. Arthrex, Inc., 594 U. S. 1, 32–35 (2021)
(Gorsuch, J., concurring in part and dissenting in part). Even those who
have advocated for the practice agree it “is essentially legislative.” R.
Ginsburg, Some Thoughts on Judicial Authority To Repair Unconstitu-
tional Legislation, 28 Clev. St. L. Rev. 301, 317 (1979); accord, ante, at 496.

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515
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the propriety of that course. It observed, for example, that
leg
islative intent is “irrelevant” when “a defendant [is] con-
victed under a law classifying on an impermissible basis”; for
that past harm, he is entitled to relief “without regard to the
manner in which” Congress might have wanted to “cure the
infrmity.” Id., at 74, n. 24. The Court stressed, too, that
we “loo[k] to Justice Harlan's concurring opinion in Welsh v.
United States,” 398 U. S. 333 (1970), when considering reme-
dies for discriminatory treatment. 582 U. S., at 75. And
that opinion is wholly inconsistent with the majority's ap-
proach today. Guessing how the legislature would have
fxed a statute had it known of a constitutional defect might
be appropriate “in an action for a declaratory judgment or
an action in equity,” Justice Harlan wrote. Welsh, 398 U. S.,
at 363–364 (opinion concurring in result) (internal quotation
marks omitted). But, he added, that course is not “appro-
priate” in cases, like the one before him, where the plaintiff
sought relief for a past harm and the result of guesswork
about legislative intentions could leave him “remediless.”
Id., at 362.
The few decisions the majority cites addressing requests
for retrospective relief make a similar point. Consider Los
Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702
(1978), a case alleging unlawful discrimination under Title
VII of the Civil Rights Act of 1964. See ante, at 496. That
statute, the Court observed, provides that “retroactive relief
`may' be awarded if it is `appropriate.' ” 435 U. S., at 719.
Despite the permissive statutory language, the Court recog-
nized the traditional “presumption in favor of ” money dam-
ages to remedy past discrimination. Ibid. This presump-
tion, Manhart continued, was so strong it “can seldom be
overcome.” Ibid. Exactly so.
4
4
With so much against it, the majority replies that I have “misappre-
hen[ded]” the “constitutional wrong at issue here.” Ante, at 500. That
charge is misdirected. Everyone appreciates that the question before us
is how to remedy a past violation of the Bankruptcy Clause. It is only
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Gorsuch, J., dissenting
2
Tur
n now to the minor premise of the majority's argument
and a second, independent problem emerges. Relying on
severability precedents, the majority reasons that Congress
would not have wanted to issue refunds in cases like this one.
But even assuming speculation about Congress's wishes has
anything to do with the scope of retrospective relief, it would
still require a refund here.
When searching for congressional intent, we have said,
there is no better place to look than “existing statutory
text.” Lamie v. United States Trustee, 540 U. S. 526,
534 (2004). Even in severability cases, we have taken pains
to stress that courts may not elevate judicial guesswork
about “Congress's hypothetical intent” over “statutory text,”
wh ich is “ the definitive expressi on of Congress's will. ”
Barr, 591 U. S., at 624–625 (opinion of Kavanaugh, J.).
Follow those directions here and we end up at a refund.
As the government has admitted, existing statutory text re-
veals that “Congress [has] authorized payments of refunds”
the majority that steadfastly refuses to recognize what remedy our cases
call for when that kind of past wrong is established: damages. Trying
another line of response, the majority seeks to characterize our centuries-
old precedents concerning retrospective relief and the irrelevance of the
severability decisions on which it relies as “new arguments.” Ante, at
502. But this reply is no more persuasive. The majority proceeds as if
Hammons didn't argue that it had a “ `legal right to recover the amount of
the funds unlawfully exacted of it,' ” Brief for Respondents 11 (brackets
omitted); that the cases cited by the government concerned “principles of
severability, not backward-looking remedies,” id., at 19; or that it was
entirely unilluminating to consider the intent of the “Congress [that] cre-
ated the statutory scheme that resulted in th[e] constitutional infrmity,”
Brief in Opposition 20. Still, if the majority wishes to rest its holding
today on the lack of party presentation of these arguments, I will not
stand in its way, for it means debtors who have more forcefully pressed
the arguments the majority overlooks need not join Hammons on the
remedia l trash-heap. Cour ts below remai n free to consider those
arguments.
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517
Gorsuch, J., dissenting
from appropriated funds. ECF Doc. 2868, at 59–60; see 133
St
at. 2398. This fact is as sure a sign as any that Congress
didn't believe refunds would cause the sort of “ `disruption of
the statutory scheme' ” the majority worries over. Ante, at
496. The law gives us our answer—refunds—no guess-
work necessary.
How does the majority respond? It points to Congress's
decision in the 2020 Act to “ `mandat[e] equal fees prospec-
tively.' ” Ante, at 499. And that decision, the majority as-
serts, is “[t]he best evidence that Congress did not intend”
for us to permit refunds. Ante, at 498–499. But the major-
ity never explains why that inference is a good, let alone
the best, inference to draw from the 2020 Act's silence about
retroactive relief. Given that Congress had already legis-
lated to provide for refunds, why would it need to repeat
itself in the 2020 Act? Cf. Bowen v. Michigan Academy of
Family Physicians, 476 U. S. 667, 681 (1986) (“We ordinarily
presume that Congress intends the executive to obey its
statutory commands”). And, particularly in those circum-
stances, why wouldn't the better inference be that Congress
assumed courts would apply their ordinary rules and recog-
nize that refunds are the appropriate remedy for illegal fees
already exacted?
5
5
Alternatively, in places, the majority seems to suggest that we should
dismiss Congress's authorization of moneys for refunds as “boilerplate lan-
guage,” ante, at 501—as if an appropriation were a meaningless formality
rather than an act of constitutional magnitude, see Art. I, § 9, cl. 7; Con-
sumer Financial Protection Bureau v. Community Financial Services
Assn. of America, Ltd., 601 U. S. 416 (2024). In other places yet, the
majority seems to suggest that the party-presentation principle somehow
allows the Court to ignore Congress's authorization of refunds entirely,
see ante, at 501—a proposition that runs headlong into the settled rule
that no party may “ `waiv[e]' ” the proper interpretation of the law by
“fail[ing] to invoke it.” EEOC v. FLRA, 476 U. S. 19, 23 (1986) (per cu-
riam); see also, e. g., Rumsfeld v. Forum for Academic and Institutional
Rights, Inc., 547 U. S. 47, 56 (2006).
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Gorsuch, J., dissenting
III
A
Traditi
onal remedial principles guarantee Hammons a re-
fund. Nothing the majority offers begins to suggest other-
wise. Still, even if we could somehow put all that aside, this
Court's due process precedents would demand the same
result.
Those precedents contemplate cases like this one. We
have held that, if an individual “reasonably relie[s] on the
apparent availability of a postpayment refund when paying ”
a contested fee, the government may not later “declare, only
after the disputed [fees] have been paid, that no such remedy
exists.” Newsweek, Inc. v. Florida Dept. of Revenue, 522
U. S. 442, 444–445 (1998) (per curiam) (internal quotation
marks omitted). This due process rule holds true even
when the individual had the option of pursuing a “prepay-
ment remedy” but chose instead to take the “apparent[ly]
availab[le]” postpayment route. Id., at 443, 445. It does
because due process prevents the government from engaging
in a “ `bait and switch' ” by later refusing to honor any reme-
dial path it previously held open to the plaintiff. Reich v.
Collins, 513 U. S. 106, 111 (1994).
The majority's failure to supply a refund violates that rule.
Start with the bait the government offered. As constitu-
tional challenges like Hammons's began trickling in, U. S.
Trustees across the country urged courts against awarding
injunctive relief or setoffs to parties contesting their dispar-
ate fee assessments. That kind of relief was unnecessary,
the government contended, precisely “because the statute
appropriating funds to the United States Trustee Program
. . . permits refunds from the U. S. Trustee System Fund . . .
according to standard procedures.” Memorandum of Law in
Support of Defendants' Motion for Summary Judgment in In
re MF Global Holdings Ltd., No. 19–01379 (Bkrtcy. Ct.
SDNY, Nov. 21, 2019), ECF Doc. 13, pp. 48–49. With rep-
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519
Gorsuch, J., dissenting
resentations like these—representations the government
wou
ld repeat in Hammons's own bankruptcy proceeding, see
Part I–B, supra—who could doubt that the opportunity to
seek a postpayment refund was anything less than “ `clear
and certain' ” ? Reich, 513 U. S., at 111. Or that Ham-
mons's decision to choose this route rather than delay its plan
confrmation to pursue a prepayment challenge was anything
other than “reasonabl[e]”? Newsweek, 522 U. S., at 445.
Now the impermissible switch. Even as it continues to
maintain that “[t]he amounts of the payments can be litigated
. . . at any time,” Brief for Petitioner 5–6, the U. S. Trustee
asks us to “declare, only after the disputed [fees] have been
paid, that no such remedy exists,” Reich, 513 U. S., at 108.
Try as litigants might, the government now insists, they can-
not in fact secure “refunds from the U. S. Trustee System
Fund” under any “procedures.” ECF Doc. 13, at 49.
That bait and switch violates due process, plain and simple.
We should not be in the business of tolerating such “con-
trived and self-serving ” changes in position. McKesson
Corp. v. Division of Alcoholic Beverages and Tobacco, Fla.
Dept. of Business Regulation, 496 U. S. 18, 42 (1990).
Rather, our precedents “requir[e] the [government] to pro-
vide the remedy it has promised.” Alden v. Maine, 527 U. S.
706, 740 (1999); accord, Newsweek, 522 U. S., at 445; see Mc-
Kesson, 496 U. S., at 31 (government “obligate[d]” to supply
“meaningful backward-looking relief ”).
B
How does the majority answer this latest problem? On
its telling, the only bait and switch our due process prece-
dents guard against arises when the government holds open
the possibility of a postpayment refund and then removes
that option by statute or regulation after a party has paid
the fee it wishes to contest. Ante, at 503–504. So, yes, the
Trustee promised that litigants could pay now and litigate
for a refund later. But, the majority insists, Hammons
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Gorsuch, J., dissenting
should have disregarded those representations and seized
“
the opportunity” always provided by statute to seek in-
junctive relief “before [it] paid” the challenged fees. Ante,
at 503.
6
This argument, too, misreads our precedents. The avail-
ability of “predeprivation remedies,” we have explained, is
“beside the point” when a party reasonably relies on the ap-
parent availability of a postpayment remedy. Reich, 513
U. S., at 113. Nor is it the case that an impermissible bait
and switch can be accomplished only through statutory or
regulatory changes. In Newsweek and Reich, for example,
this Court held that a state-court decision violated due proc-
ess by robbing the taxpayer of a postpayment remedy that
appeared available until the court ruled otherwise. News-
week, 522 U. S., at 443–445; Reich, 513 U. S., at 111–113. In-
deed, Newsweek summarily reversed a lower court for “fail-
[ing] to consider” this point. 522 U. S., at 443. The case
before us is therefore no different from those we've consid-
ered before, except in one respect: In Newsweek and Reich,
this Court cured the lower courts' due process violation;
here, the Court itself creates one by robbing Hammons of a
postpayment remedy that until this moment appeared
available.
With nowhere left to go, the majority tries to suggest that
our due process precedents are limited to the tax context.
Ante, at 503. It's the “[g]overnment's exceedingly strong
interest in” prompt tax payments, the majority reasons, that
brings with it the “postdeprivation protections” discussed in
our tax cases. Ibid. (internal quotation marks omitted).
But the majority does not explain why, as a matter of due
process, the government's promises about the availability of
6
Pause to notice that, under the majority's logic, debtors who did choose
to “withhol[d] the unconstitutional fees” and brought prepayment chal-
lenges may not now be ordered to hand over that money. Brief for MF
Global Holdings Ltd. as Amicus Curiae 5 (boldface and capitalization de-
leted); see ante, at 504 (courts “cannot remedy an old constitutional prob-
lem by creating a new one”).
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521
Gorsuch, J., dissenting
postdeprivation procedures must be honored only in the tax
context.
Nor could it. If there's anything unique about our
tax decisions, it's our treatment of “the feld of taxation” as
an area where we've “afforded [governments] great fexibil-
ity in satisfying the requirements of due process.” Na-
t io n a l Pr i v a te Tr uck Co unc i l, Inc. v. Ok l aho m a Tax
Comm'n, 515 U. S. 582, 587 (1995). In other words, we have
long treated the procedural protections described in our tax
cases as some of the most government-friendly due process
will tolerate. See Londoner v. City and County of Denver,
210 U. S. 373, 385–386 (1908). And if a bait and switch is
impermissible in the tax context, surely it must be in others.
This is hardly a new message. Reprimanding the Georgia
Supreme Court for announcing there was no postpayment
remedy only after the plaintiffs had paid a contested tax in
reliance on that remedy, this Court in Reich explained that
the case before it bore “a remarkable resemblance to
NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958).”
513 U. S., at 112. And Patterson concerned a challenge to a
state court's contempt holding, not anything having to do
with a tax. There, the Court held that, if “nothing `sug-
gest[s]' ” a particular procedural route “ `is the exclusive
remedy,' ” due process prohibits a government from later
penalizing an individual for pursuing one available route
rather than another. 513 U. S., at 113. Precisely the same
reasoning and rule apply here—another inconvenient fact
the majority prefers to ignore. See ante, at 503 (asserting
there's no “dispute” that McKesson and its progeny apply
only to taxes). In choosing this path, however, the majority
sends a clear message to lower courts and litigants: Next
time the government asks you to hold off on pursuing a rem-
edy on the promise you can always pursue it later, its repre-
sentations are worth no more than the relief the Court
awards Hammons today.
7
7
Failing all else, the majority tries to reconceive the government's
promise to pay as a representation merely that the government “would
comply with a fnal judgment.” Ante, at 502. But why the government
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Gorsuch, J., dissenting
IV
The
government's fnal salvo has to do with an appeal to
public policy. Because there are fewer Administrator Pro-
gram debtors who paid lower fees between 2018 and 2020
than there are Trustee Program debtors who paid arbitrarily
higher fees during that period, the government reasons it is
preferable either to try to recoup money from Administrator
Program debtors or to do nothing at all. Brief for Peti-
tioner 37–40. A refund to Trustee Program debtors, the
government warns, would “transfe[r] to taxpayers substan-
tial costs.” Reply Brief 2; see Brief for Petitioner 35. The
majority echoes these concerns. Providing a refund, it says,
would be “enormous[ly]” “disrupti[ve],” in part because re-
imbursing debtors in Trustee Program districts “would be
expensive.” Ante, at 497–498.
8
These concerns may be animated by prudent fscal policy,
but that is not how remedies work. Declining to pay an in-
jured plaintiff will always be the cheapest option for the de-
fendant. But when a refund is “otherwise available” as a
matter of law, “the cost of [the] refund” cannot “justify a
would need to state this obvious point goes unexplained. And try as the
majority might, what the government actually wrote leaves little room
for reimagination: “If Debtors prevail after all levels of review on their
claim that the 2017 amendment does not apply to this case or is unconstitu-
tional, the government will refund fees to the extent they were overpaid.”
ECF Doc. 2868, at 59. Nor does the majority even attempt to explain
away the government's concession before this Court that “[t]he amounts
of the payments can be litigated . . . at any time.” Brief for Petitioner
5–6.
8
At times, the majority appears so eager to infate the consequences
of supplying meaningful relief that it contradicts the government's more
moderate position. It asserts, for example, that the statute authorizing
refunds somehow proves that “refund[s] would send the U. S. Trustee Pro-
gram into fscal freefall.” Ante, at 501. But the majority does not supply
whatever back-of-the-napkin calculation leads it to contradict the U. S.
Trustee's more informed representation that the program's hundreds of
millions of dollars in funds are more than suffcient to reimburse Hammons
and others. See Part I–B, supra.
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523
Gorsuch, J., dissenting
decision to withhold it.” McKesson, 496 U. S., at 51, n. 35.
Consider
how different, for example, our equality jurispru-
dence would look were it any other way. In the 1970s, point-
ing to the price tag associated with extending equal benefts
to men and women was a favorite tactic of the federal gov-
ernment. See, e. g., Brief for Appellant in Weinberger v.
Wiesenfeld, O. T. 1974, No. 73–1892, p. 22 (extending “ `moth-
er's benefts' to fathers” might lead to “over $300 million” in
costs, equivalent to many times more than that amount
today). Should this Court have balked at the sticker price
for remedying this “monetary disparity”? Ante, at 495.
More recently, the government argued that a “damages rem-
edy against federal employees” for religious discrimination
was too costly to count as “ `appropriate relief,' ” Brief for
Petitioners in Tanzin v. Tanvir, O. T. 2020, No. 19–71, p. 30,
even though damages were “the only form of relief that
[could] remedy some . . . violations,” Tanzin, 592 U. S., at 51.
Should we have stopped to perform a cost-beneft analysis
there, too?
9
V
I struggle to understand why today the majority so readily
dismisses any remedy in this case—all to save the govern-
ment from the trouble of issuing funds the Legislature has
9
Besides emphasizing the cost to the fsc as a ground for its decision,
the majority also cites the fact that granting Hammons a refund will not
guarantee the past disparities will “be entirely eliminated.” Ante, at 498.
Why? Because not every overpaying debtor in a Trustee Program dis-
trict has sought reimbursement. Ibid. But, as best I can tell, this Court
has never before declined to remedy a plaintiff's constitutional harm on
the theory that other would-be plaintiffs forfeited or waived their right to
seek similar relief. Such a rule would be dangerous indeed for those seek-
ing to vindicate their constitutional rights. As the government concedes,
too, “there is a putative class action on behalf of all affected debtors pend-
ing in the Court of Federal Claims.” Brief for Petitioner 36. Given the
weight the majority places on Hammons's inability to recover for all af-
fected debtors, it's far from clear what the impact of today's decision is on
that action.
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appropriated and the Executive has promised to pay. As I
see
it, two possible lines of thinking may explain this unusual
outcome, neither reassuring.
One possibility is that the majority views Bankruptcy
Clause violations as less worthy of relief than other constitu-
tional violations. The majority nods in that direction when
it compares today's decision to others involving what it calls
“far more serious dignitary harms.” Ante, at 499. But if
that's the reason, it is hardly a convincing one. After all, the
majority describes its “What would Congress have done?”
approach to remedies as universally applicable—governing
questions of retrospective relief in sex discrimination and
free exercise cases no less than those arising under the Bank-
ruptcy Clause. See ante, at 495. Nor do we as judges have
any warrant to play favorites among the Constitution's pro-
visions, exalting some while relegating others to the status
of “a second-class right.” New York State Rife & Pistol
Assn., Inc. v. Bruen, 597 U. S. 1, 70 (2022) (internal quotation
marks omitted).
The other possibility is no better. Perhaps the majority
thinks supplying relief isn't worth the trouble because the
constitutional violation at issue here was, as the majority
puts it, “short-lived and small.” Ante, at 500. After all, the
violation began in 2018 and ended in 2020. But on what ac-
count does a multiyear violation of the Constitution count as
“short-lived”? And how does that violation count as “small”
when it cost Hammons $2.5 million and, as the majority itself
emphasizes, cost others millions more? Cf. Culley v. Mar-
shall, 601 U. S. 377, 411–412 (2024) (Sotomayor, J., joined by
Kagan and Jackson, JJ., dissenting) (months-long depriva-
tion of a car is a harm of constitutional proportions); Well-
ness Int'l Network, Ltd. v. Sharif, 575 U. S. 665, 703 (2015)
(Roberts, C. J., dissenting) (insisting there is no “ `de mini-
mis' ” exception for constitutional “incursion[s]”). Consider,
too, what that kind of thinking could mean for those seeking
retrospective relief for other constitutional violations. It's
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525
Gorsuch, J., dissenting
not hard to imagine today's decision receiving a warm wel-
come
from those who seek to engage in only a dash of dis-
crimination or only a brief denial of some other constitution-
ally protected right. The rest of us can only hope that the
Court corrects its mistake before it metastasizes too far
beyond the bankruptcy context.
10
Respectfully, I dissent.
10
One might wonder as well: By declining to supply a damages remedy
for a constitutional violation even when statutory law authorizes it, what
is left of the mistaken notion that the Constitution demands a damages
remedy for its violation even in the absence of statutory authority? See
Egbert v. Boule, 596 U. S. 482, 508–509 (2022) (Sotomayor, J., joined by,
inter alios, Kagan, J., concurring in judgment and dissenting in part);
Armstrong v. Exceptional Child Center, Inc., 575 U. S. 320, 338 (2015)
(Sotomayor, J., joined by, inter alios, Kagan, J., dissenting).
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 488, line 7: “to” is replaced with “of ”
p. 500, line 6: “the” is deleted
p. 509, line 6: “its” is replaced with “his”