concurring:
I am happy to concur in Judge Traxler’s fine opinion in this case. The court holds today that the Suits in Admiralty Act (SIAA), 46 U.S.C.A. §§ 741-52 (West 1975 *350& Supp.2003), is subject to an exception similar to the discretionary function exception embodied in the Federal Tort Claims Act (FTCA), 28 U.S.C.A. §§ 2671-80 (West 1994 & Supp.2003). I write simply to state my view that any different result would not be supportable.
Tort liability will certainly lie against the United States under the SIAA. After all, that is the point of any waiver of immunity in the first place. It may well be that the discretionary function exception is inapplicable on the facts of this case. But appellants ask us to go much, much farther — to indulge in effect the broadest possible waiver of sovereign immunity for the performance of every discretionary governmental function and to disregard the principle that such waivers of immunity must be narrowly construed. See Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996); United States Dep’t of Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992); McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 96 L.Ed. 26 (1951). When we address the scope of a sovereign immunity waiver, the Supreme Court requires us to take a cautious approach, not a sweeping and momentous one.
The majority’s action is not one of impermissible judicial implication. There is nothing implicit about the separation-of-powers concerns that underlie the discretionary function exception, concerns that we are obliged to honor even in the absence of a statutory directive. See, e.g., Robinson v. United States (In re Joint E. & S. Dists. Asbestos Litig.), 891 F.2d 31, 35 (2d Cir.1989); Canadian Transport Co. v. United States, 663 F.2d 1081, 1086 (D.C.Cir.1980). The executive has an explicit, not an implicit, duty to see that the laws are faithfully executed. See U.S. Const, art. II, § 3. This duty cannot be discharged without the exercise of some discretion. For the court to subject every such discretionary act to the prospect of tort liability would not only be to undercut an explicit constitutional command; it would wrongly assign to Congress the desire to debilitate the executive branch. The discretionary function exception is thus implied only in the same sense that the doctrine of qualified immunity is implied in the interpretation of 42 U.S.C. § 1983 — on the premise that without the ability to exercise some element of judgment in the execution of law, neither federal, state, nor local government could function.1
The language that this court applies today is not language that the judiciary has somehow made up on its own. Rather, the Court adopts Congress’s own explicit expression of separation-of-powers principles in 28 U.S.C. § 2680(a). See United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984) (recognizing that FTCA’s discretionary function exception was Congress’s attempt “to prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy”). The fact that we have at hand *351such a carefully crafted expression of separation-of-powers principles from a coordinate branch of government rebuts any suggestion that the court is somehow on a statutory frolic of its own.
The dissent attempts to say that Varig Airlines, and by extension the discretionary function exception itself, is not ah expression of separation-of-powers principles. See'dissenting op. at 370. ' Even in our modern age, however, some things are indeed what they seem. The discretionary function exception expresses Congress’ view of that degree of “separation” required by the executive branch to carry out its duties. It further underscores the need for judicial forbearance in the face of policy-laden decisions made by the coordinate branches of our government. These are classic separation-of-powers concerns. Not surprisingly, then, our court and our sister circuits have interpreted Varig Airlines to embody separation-of-powers principles. See, e.g., Tiffany v. United States, 931 F.2d 271, 276 (4th Cir.1991); Irving v. United States, 162 F.3d 154, 160 n. 4 (1st Cir.1998); In re Joint E. & S. Dists. Asbestos Litig.,, 891 F.2d at 35; Wiggins v. United States, 799 F.2d 962, 965-66 (5th Cir.1986).
The majority’s action thus heeds not only the executive’s constitutional prerogatives, but Congress’s respect for those prerogatives as-well. It is difficult to imagine that Congress was seeking to eliminate executive branch discretion in the execution of what are, after all, Congress’s own policy mandates and directives. See Berkovitz v. United States, 486 U.S. 531, 537, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) (finding that discretionary function exception protects “governmental actions and decisions based on considerations of public policy”). A failure to recognize any discretionary function would allow the deterrent effect of tort liability in those very areas where Congress has mandated an active executive role. Shorn of a discretionary function exception, the executive branch would be profoundly impaired in carrying out the very functions that Congress has assigned to it.
Nor is it easy to imagine that the SIAA somehow .’sought to disable the executive branch from invoking separation-of-powers principles via its discretionary functions as a defense to unlimited tort liability. Without the defense, the United States would be subject not only to constitutional constraints, but under the SIAA to tort duties and negligence actions, for attempts to enforce immigration law; to intercept narcotics-smuggling; to protect its airspace from hostile, incoming aircraft; and to safeguard its harbors from biological agents in container cargo. “Were there no such immunity for basic policy making decisions, all administrative and legislative decisions concerning the public interest in maritime matters would be subject to independent judicial review in the not unlikely event that the implementation of those policy judgments were to cause private injuries.” Gercey v. United States, 540 F.2d 536, 539 (1st Cir.1976).
The dissent speaks so derisively of the discretionary function exception that perhaps it would find no impediment to judicial consideration of the countless policy judgments attendant to armed warfare at sea. After all, ascertainable standards for the resolution of such questions may well exist. See dissenting op. at 372-73. In In re Joint E. & S. Dists. Asbestos Litig., the Second Circuit in 1989 faced a challenge under the SIAA to President Roosevelt’s use of asbestos in the construction of ships for the merchant marine in World War II. 891 F.2d at 33-34. Dismissing the suit under the discretionary function exception, the court noted:
*352The fact that the challenged actions were matters of choice cannot be overcome by clothing the discretionary acts in the maritime uniform of a breach of a duty to provide a seaworthy vessel. We are unwilling to declare that during a world war, when ships were being sunk by the enemy as fast as they could be constructed, it was impermissible for the government to choose to deploy ships in less than seaworthy condition. We need spend little time discussing whether the contested choices involved considerations of public policy. It is difficult to imagine a clearer example of a decision grounded in social, economic, and political policy than the choice of how to prosecute a world war.
Id. at 37 (internal quotations and citation omitted).
Toward the end of his opinion, my dissenting colleague attempts to crawl back from the far limb. “I agree,” he says, “that the SIAA may well authorize some suits that call upon the courts to make political judgments that they are neither prepared to make, nor capable of competently making.” Dissenting op. at 373. But while the dissent professes to recognize the same concerns as the majority, its answer is to jettison congressional language tailored to this very context — governmental tort liability — in favor of the all-purposive political question doctrine. The dissent thus commits, in even more serious fashion, the same sin that it seeks to ascribe to the majority. It concedes that a blanket waiver of immunity would run headlong into a constitutional problem, but it refuses to respect Congress’s solution to that problem. The dissent’s substitution of a judicially-derived doctrine for congres-sionally-crafted language makes for a truly anomalous statutory scheme: executive officials could be liable for discretionary functions, but only in admiralty.
The dissent thus advocates a free-floating separation-of-powers approach, which might be necessary in a context where courts had no other alternative. Here, however, there is most certainly an alternative: Congress’s adoption of a discretionary function test in the FTCA, combined with Congress’s refusal to disturb many decades of unanimous judicial interpretation relying on that same congres-sionally-grounded test in the SIAA. See majority op. at 348 n.7. To upend this settled scheme serves no purpose whatsoever, particularly when no practical reason for differentiating between the FTCA and the SIAA has ever been advanced. While my dissenting colleague may make all sorts of assumptions about whether I would or would not dismiss this case under the discretionary function exception, the point is that the answer lies in the scope of the exception to governmental tort liability, not in a generalized application of the political question doctrine.
In the end, it makes sense to reflect on the sheer enormity of what appellants and our dissenting colleagues ask the court to do. They would have us strip the government of a discretionary function defense in the face of the considered wisdom of ten other circuit courts of appeals, each of which has held the discretionary function exception applicable to the SIAA. See majority op. at 338. They would do so in a context where sovereign prerogatives can be salient and where uniformity of interpretation would seem an imperative. They would have us adopt discordant approaches to two companion acts. And they would fasten upon the government the broadest conceivable waiver of its own separation-of-powers defenses, in derogation of the principle that sweeping waivers of immunity should not be casually assumed. See Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 261, 119 S.Ct. 687, *353142 L.Ed.2d 718 (1999). Whether the discretionary function exception applies on these facts is rightly left to the district court upon remand. But our failure to recognize any exception whatsoever would set us on an aggressive course far afield of judicial competence and replete with matters of policy entrusted elsewhere. The court’s opinion rightly rejects that option.2
. Of course, qualified immunity is an example of "reading into’’ a statute a degree of immunity in order to satisfy, among other things, separation-of-powers concerns. The dissent (references are to my brother Luttig's dissent) contends that SIAA suits will pose no problem so long as personal liability to the executive actor does not attach. See dissenting op. at 367-68 n.4. To the contrary, protracted litigation imposes enormous costs if applied to the discharge of the innumerable policy-laden matters assigned by Congress to the executive branch. My dissenting colleagues appear to suggest that separation-of-powers principles are never implicated unless a coordinate branch of government is all but immobilized — a reading of separation-of-powers I respectfully reject.
. My friend in dissent says that I am guilty of "considerable overstatement.” Dissenting op. at 367 n.4; see also id. at 373 n. 6. He tops off the point by asserting that the majority's agreement with ten other circuits is “one of the most far-reaching and obviously illegitimate (as a matter of established constitutional doctrine) of any separation-of-powers analysis that [he has] encountered during [his] time on the federal bench.” Id. at 362. Not to overstate the matter, but this assertion does cover a wee bit of ground.