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 government to keep the cash it extracted from its unconstitutional fee regime.
The path the Court follows is as striking as its destination. Never mind that a refund is the traditional remedy for unlawfully 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 separate due process concerns. As the majority sees it, supplying meaningful relief is simply not worth the effort. Respectfully, 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, Page Proof Pending Publication FALL 2006, LLC cl. 4; see 3 J. Story, Commentaries on the Constitution of the United 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 bankruptcy 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 requirement. In much of the country, the United States Trustee Program, housed in the Department of Justice, handles administrative 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 Program, 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 statutory 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 Page Proof Pending Publication funds dropped below $200 million, certain bankruptcy estates 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 pending 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 Administrator 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 Conference providing that it “may require” debtors in Administrator 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 another question unanswered: what to do about Trustee Program debtors who had paid more in fees between 2018 and 2020 than did their similarly situated Administrator Program counterparts. Many Trustee Program debtors brought challenges alleging that the fees they had paid violated the uniformity 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 appropriate 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 Page Proof Pending Publication Page Proof Pending Publication FALL 2006, LLC Hammons fled Chapter 11 bankruptcy petitions in the District 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 Hammons'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' Motion 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 government [would] refund fees to the extent they were overpaid.” 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). This long-promised payment eventually came due. Anticipating our decision in Siegel by a year, in 2021 the Tenth Circuit held that Hammons had been subjected to an arbitrary 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 district 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 between 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 constitutional 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 constitutional claim. Everyone agrees those fees total approximately $2.5 million. Even more than that, it is undisputed Congress has already taken the affrmative step of appropriating 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 promised 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 flPage Proof Pending Publication Page Proof Pending Publication FALL 2006, LLC ing an adversary proceeding to challenge fees at any time while the bankruptcy case is ongoing; or by fling a district court action after the case has terminated.” Brief for Petitioner 5–6. And Hammons brought its fee challenge while its bankruptcy case was still ongoing. It is long since settled, too, that where (as here) Congress has provided “a general 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 quotation 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 monetary relief.
Centuries of judicial practice confirm as much.
This Court has long said that the “[a]ppropriate remedy” for “duties or taxes erroneously or illegally assessed . . . is an action 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) (internal 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 “regularly . . . 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 overpayments were exacted in violation of the Bankruptcy Clause. To remedy the violation, Hammons is entitled to a refund— the relief the U. S. Trustee promised from the start.
B
Despite all this, the government now tries to backtrack.
Yes, it promised to pay should Hammons prove a constitutional 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 (internal quotation marks omitted). And, they continue, had Congress known in 2017 that the disparate fee arrangement was unconstitutional, it would have responded by imposing higher fees on debtors in the Administrator Program districts. 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 1In the alternative, the government contends, the Court should “direct the Judicial Conference to . . . collect increased fees from” debtors in Administrator 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. Page Proof Pending Publication FALL 2006, LLC Start 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 suffered some form of arbitrary and unlawful discrimination in the workplace and sued your employer for damages. In response, suppose your employer reassured you that, had it known beforehand what the incident would mean for its wallet, 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 future 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 (obvious) 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 injunction.” 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 Page Proof Pending Publication of “hypothesis,” we have explained, “would be an unwarranted 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 unconstitutional 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 Kavanaugh, J.); see Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 331–332 (2006). Sometimes, Congress will include an express severability clause providing that the unconstitutionality of any one provision will not preclude 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 application 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.
2See 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).
Page Proof Pending Publication Page Proof Pending Publication FALL 2006, LLC Id., at 51. The Court held that law violated the Equal Protection 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 mothers 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 relief. 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 remove 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 3Proceeding 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 (Kavanaugh, 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 Unconstitutional Legislation, 28 Clev. St. L. Rev. 301, 317 (1979); accord, ante, at 496. the propriety of that course. It observed, for example, that legislative intent is “irrelevant” when “a defendant [is] convicted 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 remedies for discriminatory treatment. 582 U. S., at 75. And that opinion is wholly inconsistent with the majority's approach 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 “appropriate” 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 recognized the traditional “presumption in favor of” money damages to remedy past discrimination. Ibid. This presumption, Manhart continued, was so strong it “can seldom be overcome.” Ibid. Exactly so.4 4With so much against it, the majority replies that I have “misapprehen[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 Page Proof Pending Publication FALL 2006, LLC Turn 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,” which is “the definitive expression 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 reveals 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] created 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 remedial trash-heap.
Courts below remain free to consider those arguments.
Page Proof Pending Publication from appropriated funds. ECF Doc. 2868, at 59–60; see 133 Stat. 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 guesswork 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 asserts, is “[t]he best evidence that Congress did not intend” for us to permit refunds. Ante, at 498–499. But the majority 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 legislated 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 circumstances, why wouldn't the better inference be that Congress assumed courts would apply their ordinary rules and recognize that refunds are the appropriate remedy for illegal fees already exacted? 5 5Alternatively, in places, the majority seems to suggest that we should dismiss Congress's authorization of moneys for refunds as “boilerplate language,” 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).
Page Proof Pending Publication FALL 2006, LLC
III
A
Traditional remedial principles guarantee Hammons a refund. Nothing the majority offers begins to suggest otherwise. 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 “prepayment 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 remedial 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 constitutional 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 disparate 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 repPage Proof Pending Publication resentations like these—representations the government would 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 Hammons'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 cannot 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 “contrived 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 provide 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 precedents 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 Page Proof Pending Publication FALL 2006, LLC should have disregarded those representations and seized “the opportunity” always provided by statute to seek injunctive relief “before [it] paid” the challenged fees. Ante, at 503.6 This argument, too, misreads our precedents. The availability of “predeprivation remedies,” we have explained, is “beside the point” when a party reasonably relies on the apparent 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 process 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. Indeed, 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 considered 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 6Pause to notice that, under the majority's logic, debtors who did choose to “withhol[d] the unconstitutional fees” and brought prepayment challenges may not now be ordered to hand over that money. Brief for MF Global Holdings Ltd. as Amicus Curiae 5 (boldface and capitalization deleted); see ante, at 504 (courts “cannot remedy an old constitutional problem by creating a new one”).
Page Proof Pending Publication 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 fexibility in satisfying the requirements of due process.” Na tional Private Truck Council, Inc. v. Oklahoma 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 `suggest[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 remedy on the promise you can always pursue it later, its representations are worth no more than the relief the Court awards Hammons today.7 7Failing 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 Page Proof Pending Publication FALL 2006, LLC
IV
The government's fnal salvo has to do with an appeal to public policy. Because there are fewer Administrator Program 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 Petitioner 37–40. A refund to Trustee Program debtors, the government warns, would “transfe[r] to taxpayers substantial 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 reimbursing 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 injured plaintiff will always be the cheapest option for the defendant. 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 unconstitutional, 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.
8At 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 Program 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.
Page Proof Pending Publication decision to withhold it.” McKesson, 496 U. S., at 51, n. 35. Consider how different, for example, our equality jurisprudence would look were it any other way. In the 1970s, pointing to the price tag associated with extending equal benefts to men and women was a favorite tactic of the federal government. See, e. g., Brief for Appellant in Weinberger v. Wiesenfeld, O. T. 1974, No. 73–1892, p. 22 (extending “ `mother'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 remedy 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 government from the trouble of issuing funds the Legislature has 9Besides 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 district 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 seeking to vindicate their constitutional rights. As the government concedes, too, “there is a putative class action on behalf of all affected debtors pending in the Court of Federal Claims.” Brief for Petitioner 36. Given the weight the majority places on Hammons's inability to recover for all affected debtors, it's far from clear what the impact of today's decision is on that action.
Page Proof Pending Publication FALL 2006, LLC 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 constitutional 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 Bankruptcy Clause. See ante, at 495. Nor do we as judges have any warrant to play favorites among the Constitution's provisions, 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 account 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 deprivation 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 Page Proof Pending Publication not hard to imagine today's decision receiving a warm welcome from those who seek to engage in only a dash of discrimination or only a brief denial of some other constitutionally 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.
10One 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). Page Proof Pending Publication Page Proof Pending Publication 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”