Page:United States Reports 546.pdf/359

 546US1

148

Unit: $U13

[08-22-08 15:36:16] PAGES PGT: OPIN

LOCKHART v. UNITED STATES Scalia, J., concurring

Commissioners, 100 U. S. 548, 559 (1880) (in cases involving “public interests” and “public laws,” “there can be . . . no irrepealable law”); see generally 1 L. Tribe, American Con­ stitutional Law § 2–3, p. 125, n. 1 (3d ed. 2000). Among the powers of a legislature that a prior legislature cannot abridge is, of course, the power to make its will known in whatever fashion it deems appropriate—including the repeal of pre-existing provisions by simply and clearly contradicting them. Thus, in Marcello v. Bonds, 349 U. S. 302 (1955), we interpreted the Immigration and Nationality Act as impliedly exempting deportation hearings from the procedures of the Administrative Procedure Act (APA), de­ spite the requirement in § 12 of the APA that “[n]o subse­ quent legislation shall be held to supersede or modify the provisions of this Act except to the extent that such legisla­ tion shall do so expressly,” 60 Stat. 244. The Court refused “to require the Congress to employ magical passwords in order to effectuate an exemption from the Administrative Procedure Act.” 349 U. S., at 310. We have made clear in other cases as well, that an express-reference or express­ statement provision cannot nullify the unambiguous import of a subsequent statute. In Great Northern R. Co. v. United States, 208 U. S. 452, 465 (1908), we said of an express­ statement requirement that “[a]s the section. . . in question has only the force of a statute, its provisions cannot justify a disregard of the will of Congress as manifested either ex­ pressly or by necessary implication in a subsequent enact­ ment.” (Emphasis added.) A subsequent Congress, we have said, may exempt itself from such requirements by “fair implication”—that is, without an express statement. War­ den v. Marrero, 417 U. S. 653, 659–660, n. 10 (1974). See also Hertz v. Woodman, 218 U. S. 205, 218 (1910). To be sure, legislative express-reference or express­ statement requirements may function as background canons of interpretation of which Congress is presumptively aware. For example, we have asserted that exemptions from the