Page:United States Reports 502 OCT. TERM 1991.pdf/582

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DEWSNUP v. TIMM Scalia, J., dissenting

of § 506(d) alone) simply connotes an allowed claim that is “secured” in the ordinary sense, i. e., that is backed up by a security interest in property, whether or not the value of the property suffices to cover the claim. The Court attributes this position to the United States as well, ante, at 415–416, and n. 2, but the Government’s position is in fact different— and significantly so, since it does (as proper statutory interpretation ought to do) give the phrase “allowed secured claim” a uniform meaning. I must describe the Government’s theory and explain why it does not work. The distinctive feature of the United States’ approach is that it seeks to avoid invalidation of the so-called “underwater” portion of the lien by focusing not upon the phrase “allowed secured claim” in § 506(d), but upon the prior phrase “secures a claim.” (“To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void.” (Emphasis added.)) Under the Government’s textual theory, this phrase can be read to refer not merely to the object of the security, but to its adequacy. That is to say, a lien only “secures” the claim in question up to the value of the security that is the object of the lien— and only up to that value is the lien subject to avoidance under § 506(d).2 This interpretation succeeds in giving the 2 The Court’s insistence that the positions put forward by respondents and the United States are one and the same, see ante, at 417, n. 3, is simply mistaken. The following excerpts from the Government’s brief, among others, are compatible only with the theory (which is not respondents’) that the phrase “lien secures a claim” in § 506(d) means “lien is adequate security for a claim”: “On its face, [§ 506(d)] appears to take one set of circumstances—where ‘a lien secures a claim’—and carve out of it a lesser and included set of circumstances—where that secured claim ‘is not an allowed secured claim.’ Liens in the carved-out set are void. . . . “According to petitioner, what the provision means is that a lien securing an unsecured claim is void. But the provision is triggered only ‘[t]o the extent that a lien secures a claim,’ and if a lien secures a claim the claim