UNITED STATES v. SMITH

JUSTICE MARSHALL delivered the opinion of the Court.

The Federal Employees Liability Reform and Tort Compensation Act of 1988 (Liability Reform Act or Act) limits the relief available to persons injured by Government employees acting within the scope of their employment. For persons so injured, the Act provides that "[t]he remedy against the United States" under the Federal Tort Claims Act (FTCA) "is exclusive of any other civil action or proceeding for money damages." 28 U. S. C. § 2679(b)(1). Subject to certain exceptions, the FTCA permits a person injured by a Government employee acting within the scope of his or her employment to seek tort damages against the Government. One exception bars such recovery for injuries sustained outside the country. See 28 U. S. C. § 2680(k). This case presents the question whether a person injured abroad by a military physician, and whom the FTCA foreign-country exception therefore precludes from suing the Government, may nonetheless seek damages from the particular Government employee who caused the injury. We hold that the Liability Reform Act bars this alternative mode of recovery.

I

In 1982, while working on the medical staff of the United States Army hospital in Vicenza, Italy, Dr. William Marshall served as attending physician to Hildegard Smith during the delivery of her son Dominique. At this time, Ms. Smith's husband, Marcus Smith, was an Army Sergeant stationed in Italy. According to the Smiths, Dominique was born with massive brain damage. In 1987, the Smiths, who are respondents in this Court, sued Dr. Marshall in the United States District Court for the Central District of California, basing jurisdiction on diversity of citizenship. The Smiths alleged that Dr. Marshall's negligence during the delivery caused Dominique's injuries.1

The Government intervened and sought to have itself substituted for Dr. Marshall as the defendant pursuant to the Gonzalez Act, 10 U. S. C. § 1089. The Gonzalez Act provides that in suits against military medical personnel for torts committed within the scope of their employment, the Government is to be substituted as the defendant and the suit is to proceed against the Government under the FTCA. See §§ 1089(a), (b). The Government also argued that, because the action arose overseas, the FTCA exception excluding recovery for injuries sustained abroad, 28 U. S. C. § 2680(k), precluded Government liability. Consequently, the Government concluded, the action should be dismissed. The District Court granted the Government's motion for substitution and dismissed the action. See App. to Pet. for Cert. 17a-18a.2

In 1988, while respondents' appeal was pending, Congress enacted the Liability Reform Act as an amendment to the FTCA. Congress took this action in response to our ruling in Westfall v. Erwin, 484 U.S. 292 (1988), which held that the judicially created doctrine of official immunity does not provide absolute immunity to Government employees for torts committed in the scope of their employment. In Westfall, we ruled that such official immunity would have to be determined on a case-by-case basis, according to whether "the contribution to effective government in particular contexts" from granting immunity "outweighs the potential harm to individual citizens." 484 U. S., at 299. The Liability Reform Act establishes the absolute immunity for Government employees that the Court declined to recognize under the common law in Westfall. The Act confers such immunity by making an FTCA action against the Government the exclusive remedy for torts committed by Government employees in the scope of their employment.3

On appeal in the present case, the Government relied on this new statute to support the District Court's dismissal of respondents' action.4 The Government argued that the Liability Reform Act essentially had the same effect as that which the District Court had found to result from the Gonzalez Act. Because Dr. Marshall's alleged malpractice occurred in the scope of his employment, the Government argued, respondents' action should proceed against it as an FTCA action.5 The Government further contended that, because of the FTCA exception under § 2680(k) barring recovery for injuries occurring overseas, the District Court's ruling dismissing the suit should be affirmed.

The Ninth Circuit reversed, holding that neither the Gonzalez Act nor the Liability Reform Act required substitution of the Government as the defendant in this suit or otherwise immunized Dr. Marshall from liability. See 885 F.2d 650 (1989).6 With respect to the Liability Reform Act, the Ninth Circuit reasoned that although the Act renders a suit against the Government under the FTCA the exclusive remedy for employment-related torts committed by Government employees, the Act applies only when the FTCA in fact provides a remedy. Because § 2680(k) of the FTCA precludes any remedy against the Government in cases arising from injuries incurred abroad, the Ninth Circuit concluded that respondents' tort claim against Dr. Marshall was not barred by the Liability Reform Act. Id., at 654-655.

We granted certiorari, 496 U.S. 924 (1990), to resolve a conflict among the Circuits over whether the Liability Reform Act immunizes Government employees from suit even when an FTCA exception precludes recovery against the Government.7 We conclude the Act does confer such immunity and therefore reverse.

II

Section 5 of the Liability Reform Act states that "[t]he remedy" against the Government under the FTCA "is exclusive of any other civil action or proceeding for money damages. . . against the employee" and then reemphasizes that "[a]ny other civil action or proceeding for money damages. . . against the employee . . . is precluded." 28 U. S. C. § 2679(b)(1). The central question in this case is whether, by designating the FTCA as the "exclusive remedy," § 5 precludes an alternative mode of recovery against a Government employee in cases where the FTCA itself does not provide a means of recovery.

Two provisions in the Liability Reform Act confirm that § 5 makes the FTCA the exclusive mode of recovery for the tort of a Government employee even when the FTCA itself precludes Government liability. The first is § 6 of the Act. As noted, see n. 5, supra, § 6 directs the Attorney General in appropriate tort cases to certify that a Government employee named as defendant was acting within the scope of his employment when he committed the alleged tort. Section 6 also provides that the suit "shall proceed in the same manner as any action against the United States filed pursuant to [the FTCA] and shall be subject to the limitations and exceptions applicable to those actions." 28 U. S. C. § 2679(d)(4) (emphasis added). One of these "exceptions"—expressly designated as such under § 2680—is the provision barring Government liability for torts "arising in a foreign country." § 2680(k). The "limitations and exceptions" langnage in § 6 of the Liability Reform Act persuades us that Congress recognized that the required substitution of the United States as the defendant in tort suits filed against Government employees would sometimes foreclose a tort plaintiff's recovery altogether.

The second basis of our interpretation arises from the express preservations of employee liability in § 5. Section 5 declares that the FTCA is not the exclusive remedy for torts committed by Government employees in the scope of their employment when an injured plaintiff brings: (1) a Bivens action, 8 seeking damages for a constitutional violation by a Government employee; or (2) an action under a federal statute that authorizes recovery against a Government employee. See § 2679(b)(2). Congress' express creation of these two exceptions convinces us that the Ninth Circuit erred in inferring a third exception that would preserve tort liability for Government employees when a suit is barred under the FTCA. "Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent." Andrus v. Glover Construction Co., 446 U.S. 608, 616-617 (1980).9

The Ninth Circuit based its contrary construction of the Liability Reform Act on one of the Act's specialized provisions. Section 9 of the Act provides that the Tennessee Valley Authority (TVA) shall be substituted as defendant in any suit against a TVA employee arising from "act[ions] within the scope of his office or employment," 16 U. S. C. § 831c-2(b)(1), and that an action against the TVA is "ex[c]lusive of any other civil action or proceeding," 16 U. S. C. § 831c-2(a)(1). Under the TVA exception to the FTCA, 28 U. S. C. § 2680(l), the Government may not be held liable for any claim arising from the TVA's activities. The Ninth Circuit inferred from the enactment of § 9 that Congress must have expected that § 5 would not shield TVA employees from liability where suit against the United States was precluded by § 2680(l). See 885 F. 2d, at 655. And because only TVA employees were singled out for a special grant of immunity, the court concluded that all other Government employees must remain subject to liability where the FTCA precludes suit against the United States. See ibid.

The Ninth Circuit's analysis rests on a misunderstanding of the purpose and effect of § 9. By its terms, § 9 does not invest TVA employees with more immunity than § 5 affords other Government employees. Rather, § 9 provides merely that a suit against the TVA, 16 U. S. C. § 831c-2(a)(1), rather than one against the United States, 28 U. S. C. § 2679(b)(1), shall be the exclusive remedy for the employment-related torts of TVA employees. This adjustment of the Liability Reform Act's immunity scheme is perfectly sensible, for although the United States may not be held liable for the TVA's activities, the TVA itself "[m]ay sue and be sued in its corporate name." 16 U. S. C. § 831c(b). Courts have read this "sue or be sued" clause as making the TVA liable to suit in tort, subject to certain exceptions. See, e. g., Peoples Nat. Bank of Huntsville, Ala. v. Meredith, 812 F.2d 682, 684-685 (CAll 1987); Queen v. Tennessee Valley Authority, 689 F.2d 80, 85 (CA6 1982), cert. denied, 460 U.S. 1082 (1983). In our view, the most plausible explanation for § 9 is that, in view of lower court cases establishing the TVA's own tort liability independent of the FTCA, Congress decided to clarify that the TVA should be substituted in suits brought against TVA employees.

Seen in this light, the enactment of § 9 supports no inference either way on the scope of § 5 immunity when suit against the United States is precluded under the FTCA. Both the plain language and legislative history of § 9 indicate that the provision was intended to give TVA employees the same degree of immunity as § 5 gives other Government employees. Compare 28 U. S. C. § 2679(b)(1), with 16 U. S. C. § 831c-2(a)(1). See also 134 Cong. Rec. 31054 (1988) (remarks of Sen. Heflin). But because the scope of immunity conferred to employees is the same, § 9 has no bearing upon whether Congress viewed § 5 as protecting Government employees from liability when suit against the United States is precluded under the FTCA.10

III

A

In support of the decision below, respondents advance reasoning not relied upon by the Ninth Circuit. They invoke the well-established principle of statutory interpretation that implied repeals should be avoided. See, e. g., Randall v. Loftsgaarden, 478 U.S. 647, 661 (1986) ("`repeals by implication are not favored'" (citations omitted)). Respondents contend that the Government's construction of the Liability Reform Act precluding tort liability for Dr. Marshall results in an implied repeal of the Gonzalez Act, 10 U. S. C. § 1089, which regulates suits against military medical personnel. We disagree.

The Gonzalez Act is one of a series of immunity statutes enacted prior to the Liability Reform Act that were designed to protect certain classes of Government employees from the threat of personal liability.11 For torts committed by military medical personnel within the scope of their employment, the Gonzalez Act provides that a suit against the Government under the FTCA is the exclusive remedy. 10 U. S. C. § 1089(a).12

Two Courts of Appeals, including the Ninth Circuit in the decision below, have held that the Gonzalez Act's grant of absolute immunity from suit protects only military medical personnel who commit torts within the United States and not those committing torts abroad. See 885 F. 2d, at 652-654; Newman v. Soballe, 871 F.2d 969 (CAll 1989). In reaching this conclusion, these courts relied largely on § 1089(f) of Title 10, which permits agency heads to indemnify or insure foreign-based military medical personnel against liability for torts committed abroad while in the scope of their employment.13 The Ninth and Eleventh Circuits construe § 1089(f) to limit the protection available to foreign-based military medical personnel to indemnification or insurance, instead of the immunity that is otherwise available to them when stationed within the United States.14 Under this interpretation, the Gonzalez Act would not preclude respondents from suing Dr. Marshall directly in a United States court. Respondents contend that extending the Liability Reform Act to foreign-based military medical personnel therefore would effect an implied repeal of their "Gonzalez Act remedy." See Brief for Respondents 8, 33, 46.

We reject the last step in respondents' argument. For purposes of this case, we need not question the lower court's determination that the Gonzalez Act would not immunize Dr. Marshall from a malpractice action brought under state or foreign law. Even if the lower court properly interpreted the Gonzalez Act, it does not follow, however, that application of the Liability Reform Act to an action founded on state or foreign law effects a "repeal" of the Gonzalez Act. The Gonzalez Act functions solely to protect military medical personnel from malpractice liability; it does not create rights in favor of malpractice plaintiffs. What respondents describe as their "Gonzalez Act remedy" is in fact a state- or foreign-law remedy that would not be foreclosed by Gonzalez Act immunity. Consequently, the rule disfavoring implied repeals simply is not implicated by the facts of this case, because the Liability Reform Act does not repeal anything enacted by the Gonzalez Act. The Liability Reform Act adds to what Congress created in the Gonzalez Act, namely protection from liability for military doctors. Respondents' rights, on the other hand, arise solely out of state or foreign law. Because Congress did not create respondents' rights, no implied repeal problem arises when Congress limits those rights.15

B

Respondents next raise a second and slightly different argument involving the Gonzalez Act. They contend that the Liability Reform Act was meant to apply solely to those Government employees not already protected from tort liability in some fashion by a pre-existing federal immunity statute. Under respondents' construction of the Act, military medical personnel and other Government employees who were already protected by other statutes, see n. 11, supra, cannot now benefit from the more generous immunity available under the Liability Reform Act. In our view, such a construction is inconsistent with Congress' purpose in enacting the Liability Reform Act.

The Liability Reform Act's plain language makes no distinction between employees who are covered under pre-Act immunity statutes and those who are not. Section 5 states that, with respect to a tort committed by "any employee of the Government" within the scope of employment, the FTCA provides the exclusive remedy. See 28 U. S. C. § 2679(b)(1) (emphasis added). No language in § 5 or elsewhere in the statute purports to restrict the phrases "any employee of the Government," as respondents urge, to reach only employees not protected from liability by another statute. When Congress wanted to limit the scope of immunity available under the Liability Reform Act, it did so expressly, as it did in preserving employee liability for Bivens actions and for actions brought under a federal statute authorizing recovery against the individual employee. § 2679(b)(2); see also supra, at 166-167. In drafting the Liability Reform Act, Congress clearly was aware of the pre-Act immunity statutes. See H. R. Rep. 100-700, p. 4 (1988) (citing these statutes, including the Gonzalez Act). We must conclude that if Congress had intended to limit the protection under the Act to employees not covered under the pre-Act statutes, it would have said as much.16

C

Finally, respondents argue that their claim falls within one of the two express exceptions under the Liability Reform Act—the exception permitting suits "brought for a violation of a statute of the United States under which such action against an individual [employee] is otherwise authorized." § 2679(b)(2)(B). Respondents assert that they have satisfied both conditions set forth in this exception. They contend that (1) their claim against Dr. Marshall is "authorized" by the Gonzalez Act and that (2) because the Gonzalez Act permits suits against military doctors for negligence in certain instances, such claims of negligence constitute claims of a Gonzalez Act "violation." We need not decide whether a tort claim brought under state or foreign law could be deemed authorized by the Gonzalez Act, for we find that respondents' second argument—that a claim for malpractice involves "a violation of" the Gonzalez Act—is without merit. Nothing in the Gonzalez Act imposes any obligations or duties of care upon military physicians. Consequently, a physician allegedly committing malpractice under state or foreign law does not "violate" the Gonzalez Act.

The dissent disagrees. According to the dissent, unless § 2679(b)(2)(B) "was intended to preserve the Gonzalez Act remedy, it was essentially without purpose." Post, at 183. However, the dissent never attempts to square this assertion with the plain language of § 2679(b)(2)(B), which permits only those suits against Government employees "brought for a violation of a statute of the United States under which such action against an [employee] is otherwise authorized" (emphasis added). At no point does the dissent indicate how a military physician's malpractice under state or foreign law could be deemed a "violation" of the Gonzalez Act. Nor can the dissent avoid this obstacle merely by invoking the canon of statutory construction that every provision of a law should be given meaning. See post, at 183, and n. 8. It is true that the legislative history fails to disclose (and neither we nor the dissent has attempted to discover) what cause(s) of action Congress sought to preserve when it enacted § 2679(b)(2)(B), but a malpractice suit alleging a "violation" of the Gonzalez Act cannot have been one of them. The Gonzalez Act simply does not impose any duties of care upon military physicians that could be violated.

The dissent resists this conclusion because it is impressed by "Congress' general intent, expressed throughout the hearings and in the House Report, that [the Liability Reform Act] not curtail any pre-existing remedies of tort victims." Post, at 183. The truth is, however, that the legislative history reveals considerably less solicitude for tort plaintiffs' rights than the dissent suggests. As we have already noted, see n. 9, supra, the House Report expressly warned that, under the Liability Reform Act, "any claim against the government that is precluded by [FTCA] exceptions"—which obviously would include claims barred by the exception for causes of action arising abroad—"also is precluded against an employee." H. R. Rep. 100-700, at 6 (emphasis added). This congressional intent was clearly implemented in § 5 of the Act, and we are obliged to give it effect.

IV

For the reasons set forth above, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

JUSTICE STEVENS, dissenting.

The Department of Defense (Department) provides medical and dental care for families of service personnel stationed abroad. Subsection (f) of the Gonzalez Act authorizes the Department to indemnify its health care personnel serving overseas in the event that they are sued for malpractice.1 Regulations issued pursuant to subsection (f) make the United States the real party in interest in such a tort action.2 The regulations provide victims of malpractice with a remedy against the United States, even in cases in which the nominal, individual defendant may have no assets.

This Gonzalez Act remedy protects both doctors and patients involved in malpractice claims arising out of the performance of health care services for American military personnel and their dependents assigned to duty in foreign countries. The Federal Employees Liability Reform and Tort Compensation Act of 1988 (Liability Reform Act) that the Court construes today says nothing about this special situation; yet, the effect of today's decision is to render subsection (f) of the Gonzalez Act virtually meaningless. There is nothing in the legislative history of the Liability Reform Act to indicate that Congress intended this result. On the contrary, there is strong evidence in both the legislative history, and in the language of §§2 and 5(b)(2)(B) of the statute, that Congress intended to preserve pre-existing remedies. This point is clarified by examining the two statutes separately and in chronological order.

I

The principal purpose of the Gonzalez Act is succinctly stated in its preamble. It was enacted

To achieve its purpose, Congress simply followed the precedent set by four previous amendments to the Federal Tort Claims Act (FTCA), none of which had curtailed any pre-existing remedies.3

For claims not covered by the FTCA, such as for those claims arising in foreign countries, the Gonzalez Act authorized medical personnel to be insured or indemnified by the Federal Government. See n. 1, supra. By that arrangement, Congress protected Government doctors from personal liability for services performed in the course of their overseas duties, and at the same time, preserved the common-law remedy for American victims of medical malpractice.

The Court does not disagree with this interpretation of the Gonzalez Act, see ante, at 170-171, or with the Court of Appeals' conclusion that respondent's claim was viable prior to the enactment of the Liability Reform Act in 1988. See ante, at 172. Thus, the question is whether the Liability Reform Act withdrew the remedy for malpractice claims arising outside of the United States that had been expressly preserved by subsection (f) of the Gonzalez Act.

II

The Liability Reform Act was a direct response to this Court's decision in Westfall v. Erwin, 484 U.S. 292 (1988). In Westfall, we resolved a conflict among the Courts of Appeals on the question whether conduct by federal officials must be discretionary in nature, as well as being within the scope of their employment, before the conduct is absolutely immune from state-law tort liability. Id., at 295. We held unanimously that nondiscretionary conduct was not entitled to such immunity. Id., at 297.

Congress enacted the Liability Reform Act to protect all federal employees from the risk of personal liability that was thought to have been created by Westfall. Congress was particularly concerned that lower level employees, the rank and file "who are least likely to exercise discretion in carrying out their duties," were among those who were most likely to be affected by the Westfall decision. H. R. Rep. No. 100-700, p. 3 (1988).

Section 2 of the Liability Reform Act contains a detailed statement of Congress' reasons for enacting the statute.4 Congress summarized its purpose as follows:

Notably, neither that statement, nor anything in the legislative history of the Act, reveals any intent on the part of Congress to limit the scope of pre-existing remedies available to victims of torts committed by federal employees.5

There were two recurring themes throughout the hearings on the bill that gave rise to the Liability Reform Act. One theme was that this legislation was not intended to curtail any existing remedies already available to tort victims against federal employees,6 and the other was that Congress sought to protect all federal employees from suit by substituting the United States for the individual tortfeasor as the responsible party—a substitution that would normally benefit the injured party who would no longer have to worry about whether he or she would be able to collect the judgment. The bill was supported by the Department of Justice and two unions representing federal employees.

Members of Congress not only articulated their intent to preserve the scope of existing remedies during the hearings, but also reinforced that intent by amending the original bill to include § 5(b)(2), 28 U. S. C. § 2679(b)(2). As amended, § 5(b)(2) provides:

As to § 5(b)(2)(A), Congress made explicit throughout the hearings its intent to exclude constitutional violations from the Liability Reform Act's coverage.7 The Justice Department endorsed that view:

The Justice Department explained that the issue of constitutional torts was a controversial one, and one that was not affected by the Court's decision in Westfall because Westfall was limited to common-law torts. Id., at 79. Members of Congress stressed that constitutional torts would not be encompassed by this legislation, and thus, there was no need to address the issue. See, e. g., id., at 40, 195. During the hearings, however, there was some suggestion that an action could involve both a common-law tort and a constitutional violation. See, e. g., id., at 42, 127, 173. In response to this concern, Congress apparently added § 5(b)(2)(A) to make explicit what it had assumed all along: that victims of constitutional violations would remain free to pursue a remedy against the individual employee if they chose to do so.

As to § 5(b)(2)(B), Congress provided no specific explanation for its inclusion, other than its general concern with preserving all pre-existing remedies available to victims of torts committed by federal employees. Just as Congress added § 5(b)(2)(A) to ensure that constitutional torts would not be included within the scope of the Liability Reform Act, similarly, it must have added § 5(b)(2)(B) to ensure that pre-existing remedies protected by a statute would not be affected as well. Congress did not need to add this amendment, any more than it needed to add § 5(b)(2)(A), because just as constitutional torts are, for the most part, outside the realm of common-law torts, similarly statutory violations are also outside the realm of common-law torts. Nevertheless, this action is consistent with Congress' general intent, expressed throughout the hearings and in the House Report, that it not curtail any pre-existing remedies of tort victims. Unless the amendment was intended to preserve the Gonzalez Act remedy, it was essentially without purpose—a result Congress clearly could not have intended.

The Court's reading of the Liability Reform Act makes § 5(b)(2)(B) superfluous8 Indeed, the Court never says what kind of statutory violation § 5(b)(2)(B) is meant to protect, nor does Congress provide any specific guidance. To avoid the Court's result of turning this subsection into surplusage, it should be construed to accomplish the purpose repeatedly identified in the hearings, which is to avoid any interpretation of the Act that would limit the scope of pre-existing common-law remedies. This purpose was unequivocally identified in the House Report on the bill. It explains: "Under H. R. 4612, no one who previously had the right to initiate a lawsuit will lose that right." H. R. Rep. No. 100-700, at 7.9

The description of § 5 in the section-by-section analysis of the Liability Reform Act is consistent with the view that it was intended to describe the remedy available to a plaintiff in a common-law cause of action for malpractice arising in foreign countries that was specifically authorized by subsection (f) of the Gonzalez Act. The House Report states that the section "would make it clear that the remedy provided in this legislation does not extend to constitutional torts or to causes of action specifically authorized to be brought against an individual by another statute of the United States." Id., at 8 (emphasis added).

The Court argues that the "Gonzalez Act remedy" has not been impliedly repealed because "[t]he Gonzalez Act functions solely to protect military medical personnel from malpractice liability; it does not create rights in favor of malpractice plaintiffs." Ante, at 172. This is not strictly accurate because subsection (f) of the Gonzalez Act, as implemented by regulation, did provide malpractice plaintiffs with an important remedy against the United States as the real party in interest that they did not previously have.10 Moreover, this provision of the Gonzalez Act amounted to an express preservation of a common-law remedy. Because § 5(b)(2)(B) of the Liability Reform Act is otherwise virtually meaningless,11 I believe it should be construed to preserve that remedy. Otherwise, without any justification for doing so, the Liability Reform Act has silently repealed this provision of the Gonzalez Act.

Under the Court's holding, the Liability Reform Act has closed the door to all federal and state courts for American victims of malpractice by federal health care personnel stationed abroad.12 No legislative purpose is achieved by that holding because these personnel are already protected from personal liability by the Gonzalez Act and the indemnity regulation. The only significant effect of this holding is to deprive an important class of potential plaintiffs of their pre-existing judicial remedy. Respondents, and other plaintiffs like them, are now precluded from pursuing their pre-existing common-law claims against an allegedly negligent doctor working abroad, even though the doctor is indemnified by the Federal Government. I cannot believe that Congress intended that result. I am therefore persuaded that § 5(b)(2)(B) should be read in a way that prevents it from being nothing more than a meaningless appendage and allows it to fulfill its intended purpose of preserving pre-existing claims.13

In Westfall v. Erwin, 484 U.S. 292 (1988), we said that "Congress is in the best position to provide guidance for the complex and often highly empirical inquiry into whether absolute immunity is warranted in a particular context" and we suggested that "[l]egislated standards governing the immunity of federal employees involved in state-law tort actions would be useful." Id., at 300. Today, the Court, by deciding that a section of Congress' handiwork is a nullity, once again invites Congress to step in and "provide guidance."

I respectfully dissent.