dissenting:
The separation-of-powers analysis on the strength of which the majority judicially engrafts upon the Suits in Admiralty Act (SIAA), 46 U.S.C. app. §§ 741-52 (2000), a discretionary function exception is one of the most far-reaching and obviously illegitimate (as a matter of established constitutional doctrine) of any separation-of-powers analysis that I have encountered during my time on the federal bench. It is plain that, in judicially forbidding the “clear and unequivocal” waiver of sovereign immunity that both the Congress and the Executive agreed upon in the SIAA, the court fundamentally misunderstands the principle of separation of powers, mistakenly equating liability on behalf of the United States with infringement on the Executive’s power to execute the laws. Indeed, the level of misunderstanding in this regard is breathtaking.
Not only are the separation-of-powers concerns that the court believes require its conclusion not “compelling”; separation of powers properly understood, those concerns are altogether nonexistent. That the Congress of the United States (together with the President himself, incidentally) chooses to render the United States liable for a boating accident caused by the negligence of government officials, on the same terms as would a private individual be liable for such accident, does not even *363arguably encroach upon the Executive’s constitutional power to faithfully execute the laws. And, of course, no more so does it require exercise of that Executive power by the Judiciary.
Because the decision of Congress (and the President) to waive immunity broadly does not itself raise any separation-of-powers concern, much less one that would necessitate the extraordinary interpretative action of judicial implication of a categorical discretionary function exception, which even the majority concedes Congress never intended, I dissent.
Judge Wilkinson, in concurrence, protests, but too much, that the court has not gone on a “statutory frolic of its own.” But this is precisely what he proposes. And his attempt to justify the court’s action exclusively on public policy grounds, without even a pass at a traditional or statutory legal analysis, only further highlights the legal error committed by the court today.
I.
A.
By every traditional measure of statutory interpretation, the waiver of the federal government’s immunity from suit in the SIAA must be read not to include an exception for discretionary functions. See 46 U.S.C. app. § 742. To its credit, the majority does not even contend otherwise.
As to the text of the SIAA, the majority explains,
[T]he SIAA includes no list of exceptions to its waiver of sovereign immunity, but instead provides only that the government is entitled to the limitations of liability that are available in admiralty to private defendants. Thus, the plain language of the SIAA seems to reflect a Congressional intent that discretionary acts should not be excluded from the waiver of sovereign immunity.
Ante at 339.
As to the legislative history of the SIAA, the majority rejects as “rather remarkable” and “difficult ... to accept” the government’s argument that a remark made by an Assistant Attorney General in 1942 during a congressional hearing on the Federal Tort Claims Act,1 should guide the court’s interpretation of the SIAA, which was enacted twenty-two years earlier in 1920 and amended eighteen years later in 1960. The majority explains that, when Congress itself finally enacted the FTCA four years after this statement, it did not accept the Assistant Attorney General’s assurance; instead it included an express exception for discretionary functions of the government in the FTCA. See 28 U.S.C. § 2680(a). The majority then reasons quite rightly that, if the legislative history of the FTCA is to be given any effect in interpreting the SIAA, it argues against construing the SIAA to include a discretionary function exception:
[I]f the [discretionary functions] exception remained as important to Congress in 1960 when it amended the SIAA as it was when the FTCA was enacted, then it stands to reason that Congress would have written the exception into the SIAA then, particularly since the 1960 SIAA amendments transferred jurisdiction over a number of claims from the FTCA to the SIAA.
*364Ante at 340.2
And, as to “familiar canons of statutory-construction,” the majority, likewise, correctly rejects the government’s argument that the SIAA’s waiver of sovereign immunity in the SIAA is ambiguous with respect to discretionary functions, reasoning that,
the waiver of sovereign immunity contained within the SIAA [ ] is clear and unequivocal, providing that an in per-sonam admiralty action may be brought against the government if such an action could be maintained against a private person. Contrary to the government’s suggestion, we simply cannot create an ambiguity in the SIAA by looking to the language and structure of the FTCA.
Ante at 340.
With each of these conclusions, as to the Act’s statutory text, legislative history, and the import of traditional tools of statutory construction, I could not agree more. And, of course, I also agree with the majority’s understated conclusion that, in light of these considerations, one “cannot conclude that Congress clearly intended for the SIAA’s waiver of sovereign immunity to be subject to an exception for discretionary functions, nor can [one] reach that conclusion by resort to traditional tools of statutory construction.” Ante at 340. In fact, as the majority ably demonstrates in its wholesale rejection of the government’s statutory arguments, both the text of the SIAA and “traditional tools of statutory construction” prove precisely the opposite, that Congress intended not to except discretionary functions from its waiver of sovereign immunity in the SIAA.
B.
Despite its own acknowledgment of the conclusive nature of the statutory text and legislative history, however, the majority holds that it is nevertheless “required” by separation-of-powers principles to “read into the SIAA’s waiver of sovereign immunity a discretionary function exception,” ante at 343. Undoubtedly in an effort to play down the import of its extraordinary holding, the majority maintains that it reaches this result as a matter of statutory *365interpretation.3 But, of course, in actuality it reaches its result as a matter of constitutional principle of the highest order. And its reconstruction of the statute on the basis of this constitutional principle is indefensible.
Though the majority does not say so explicitly, its contention that it may “read into” the SIAA an exception where the Act itself is “silent” is apparently founded on the canon of constitutional avoidance, see ante at 344, which provides that statutory ambiguity should be resolved in a manner that avoids difficult constitutional questions out of “respect for Congress, which wé assume to legislate in the light of constitutional limitations.” Harris v. United States, 536 U.S. 545, 556, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (quoting Rust v. Sullivan, 500 U.S. 173, 191, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991)). The canon of avoidance is not applicable here, however, because, as the majority itself holds, the SIAA’s waiver of sovereign immunity is “clear and unequivocal.” See United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 494, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001) (holding that “the canon of constitutional avoidance has no application in the absence of statutory ambiguity”). I could not state it any clearer than does the majority: “The waiver of sovereign immunity contained within the SIAA [ ] is dear and unequivocal, providing that an in personam admiralty action may be brought against the government if such an action could be maintained against a private person. Contrary to the government’s suggestion, [the court] simply cannot create an ambiguity in the SIAA by looking to the language and structure of the FTCA.” A±nte at 340 (emphasis added).
The majority attempts to avoid the problem that the SIAA’s unequivocal waiver poses to its invocation of the avoidance canon by characterizing the SIAA at a different point in its opinion as “silent” on the particular question of whether immunity for the performance of discretionary functions is waived. This argument, for which the majority does not offer even a word of support, is no more availing than the government’s contention, rejected by the majority, that the SIAA is ambiguous. The SIAA provides that, “in cases where ... if a private person or property were involved, a proceeding in admiralty could be maintained,” suit may be brought against the United States government. 42 U.S.C. app. § 742. Because private persons clearly may be sued for negligent, discretionary actions, the unambiguous meaning of this statute is that the government may be sued for these actions as well. In no sense at all does the absence of an exception from the Act’s general waiver of sovereign immunity render the Act “silent” on the question of whether that waiver should be interpreted to include the exception. See Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 211-12, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998); Engine Mfrs. Ass’n v. E.P.A., 88 F.3d 1075, 1088 (D.C.Cir.1996) (providing that, if the text of a statute “clearly requires a particular outcome, then the mere fact that it does so implicitly rather than expressly does not mean that it is ‘silent’ ”). Rather, the absence of the exception, coupled with *366the imposition of liability on the United States on the same terms as would a private individual be liable, is about as clear an expression of congressional intent to waive the government’s sovereign immunity broadly as can be imagined.
The majority obviously has failed to appreciate that“[t]here is a basic difference between filling a gap left by Congress’ silence and rewriting rules that Congress has affirmatively and specifically enacted.” United States v. Locke, 471 U.S. 84, 95, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985) (quoting Mobil Oil Corp. v: Higginbotham, 436 U.S. 618, 625, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978)). The canon of avoidance provides that a court may do the former to avoid raising constitutional issues, but under no circumstance does it provide justification for a court to undertake the latter. Whitman v. American Trucking Ass’n., 531 U.S. 457, 471, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (“No matter how severe the constitutional doubt, courts may choose only between reasonably available interpretations of a text.”); Yeskey, 524 U.S. at 212, 118 S.Ct. 1952. “Any other conclusion, while purporting to be an exercise in judicial restraint, would trench upon the legislative powers vested in Congress by Art. I, § 1, of the Constitution.” United States v. Albertini, 472 U.S. 675, 680, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985). In this case, the SIAA’s waiver of sovereign immunity is complete and leaves no gap to be filled; the court’s contrary “construction” of the Act to include an exception missing from the text of the Act itself represents nothing more than judicial legislation within the meaning of Albertini. As the Supreme Court explained in dismissing a similar argument that the FTCA must be read to exclude “core government functions” from liability despite the absence of such an exemption from the statutory text: “There is no justification for this Court to read exemptions into the Act beyond those provided by Congress. If the Act is to be altered that is a function for the same body that adopted it.” Rayonier Inc. v. United States, 352 U.S. 315, 320, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957).
In sum, the SIAA is not “silent” on the question of whether its waiver of sovereign immunity includes waiver of immunity from claims for injuries caused by the government’s discretionary acts any more than a will directing that the entirety of a deceased’s estate be given to his spouse is “silent” on the. question of whether that direction includes his house. Indeed, because the Act is unambiguous on this issue, the canon of constitutional avoidance — the means through which the majority engrafts a discretionary function exception here — is flatly inapplicable. I would affirm our court’s decision in Lane v. United States, 529 F.2d 175 (4th Cir. 1975), and hold that the SIAA means what it says: a “nonjury proceeding in personam may be brought against the United States” wherever a suit could be maintained “if a private person or property were involved.” 46 U.S.C. app. § 742.
II.
In high irony, the majority rejects this holding, which actually is compelled by the principle of separation of powers, in an effort to avoid what the majority perceives to be, but which emphatically are not, two separate affronts to that principle. First, and primarily, the majority believes that the imposition of liability on the government for its discretionary acts would represent an encroachment by Congress on “[t]he executive branch’s ability to ‘faithfully execute! ]’ the law, U.S. Const., art. II § 3.” Ante at 342; see also id. at 343-44 n. 5. Second, the majority believe that, were the SIAA interpreted to subject the government to liability for its discretionary *367functions, “the judiciary would be called upon to decide issues it is not equipped to resolve,” and would be forced to “second-guess” the wisdom of policy decisions made by the government. Ante at 341. So severe does the majority believe these two potential problems to be that a fair reading of its opinion is that it believes that it would likely be unconstitutional for Congress to subject the government to liability for its performance of discretionary acts under any circumstance. See id. at 343^44 n. 5.
Neither of these two perceived separation-of-powers problems even arguably requires that, as a categorical matter, the government be immune from liability whenever its tortious acts may be characterized as discretionary. The majority’s contortion of the statutory text of the SIAA, in other words, is ultimately as unnecessary constitution-ally as it is impermissible statutorily.
A.
1.
As to the first of the majority’s separation-of-powers concerns, the absence of a discretionary function exception from the SIAA, whatever else it may be, is not even arguably an impermissible encroachment on the Executive’s duty to faithfully execute the laws. The only effect the SIAA’s blanket waiver of immunity has is to subject the government to liability for a larger class of conduct than would be the case if certain government functions were excepted from the Act’s coverage. And not even the majority identifies a single law that the Executive would be prohibited from or impeded from enforcing were the court to interpret this broad waiver of sovereign immunity as it was written to include discretionary functions, or even to explain the way in which the Executive’s enforcement powers could be affected by the liability that such a waiver creates.4
*368Although it does not realize it, the prob-lemfacing the majority is one relating to first principles: It has misunderstood— and fundamentally so — the very separation-of-powers principle that it believes compels its holding. The majority has equated governmental immunity from liability with the execution of the laws, holding that, if by statute the government is rendered liable, then ipso facto the Executive’s power to execute the laws has been “substantially impaired.” Ante at 342 (relying on examples of potential government liability to “illustrate” that “if the SIAA does not include a discretionary function exception, the executive branch’s ability to ‘faithfully execute[ ]’ the law would be substantially impaired”) (internal citation omitted); ante at 350 (citing Congress’ “desire to protect certain governmental activities from exposure to suit by private individuals” as the “separation of powers concern” that “drove Congress to create the discretionary function exception to the FTCA”); see also ante at 350 (Wilkinson, J., concurring) (stating that “the executive has an explicit, not an implicit, duty to see that the laws are faithfully executed” and that “to subject [the Executive’s] ... discretionary act[s] to the prospect of tort liability ... undercuts] [that] explicit constitutional command”). To equate the Executive’s duty to “faithfully execute the Laws” under Article II of the Constitution, with governmental immunity, is to fundamentally misapprehend both concepts. I would not have thought it needed saying, but the laws that the Executive is charged to enforce are those enacted by the Congress. Within contours limited only by the Constitution, Congress possesses the power to set the legal parameters within which the Executive and its officials must act and to provide a remedy to citizens injured by the government’s failure to observe those parameters. See Bowsher v. Synar, 478 U.S. 714, 733, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (explaining that “once Congress makes its choice in enacting legislation ... [it] can thereafter control the execution of its enactment ... indirectly — by passing new legislation”); Buckley v. Valeo, 424 U.S. 1, 132, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (providing that “Congress has plenary authority in all areas in which it has substantive legislative jurisdiction so long as the exercise of that authority does not offend some other constitutional restriction”) (internal citation omitted). And when it does so, there is no argument of any kind that it has encroached upon the Executive’s Article II, sec. 3 power. As the Tenth Circuit recently explained,
when Congress is exercising its own powers with respect to matters of public *369right, the executive role of ‘tak[ing] Care that the Laws be faithfully executed,’ is entirely derivative of the laws passed by Congress, and Congress may be as specific in its instructions to the Executive as it wishes.
Biodiversity Assoc. v. Cables, 357 F.3d 1152, 1162 (10th Cir.2004) (internal citation omitted); see id. (“To give specific orders by duly enacted legislation in an area where Congress has previously delegated managerial authority is not an unconstitutional encroachment on the prerogatives of the Executive; it is merely to reclaim the formerly delegated authority.”) (emphasis in original); Stop H-3 Assoc. v. Dole, 870 F.2d 1419, 1437 (9th Cir.1989).
Congress’ judgment in the SIAA to limit the Executive’s discretion through tort liability on the same terms as would exist for a private individual is no less constitutional than the requirement under the National Environmental Policy Act that the Executive first prepare an environmental impact statement before undertaking an act that may cause environmental harm, see 42 U.S.C. § 4332, or, even more generally, the requirement under the Administrative Procedures Act that Executive agencies implement the substantive laws they are charged with enforcing reasonably and non-arbitrarily, see 5 U.S.C. § 706 (providing that a reviewing court shall “hold unlawful and set aside agency action, findings and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”). Each statutory obligation constrains the Executive’s discretion, and, at some level, each subjects the Executive to judicial review of its discretionary decisions to ensure that it abides those constraints. The procedural and substantive burdens these Acts impose prevent the Executive from acting when it otherwise would have in some eases and, in others, cause the Executive to implement the laws in ways that it otherwise would not. Yet, the limitation on the range of permissible actions that NEPA and the APA impose do not violate the principle of separation of powers because those acts of Congress, like the SIAA, are the laws that the Executive is charged with executing.
This is not to say that it is impossible for Congress to enact a law that impermissibly impinges on the Executive’s constitutional prerogatives. Unquestionably, Congress could do so. For instance, if Congress were to subject the Executive’s exercise of its core prosecutorial discretion to review by the courts, or, even more dramatically, to condition a significant level of funding on the exercise of the Executive’s pardon or appointment powers in a particular manner, legitimate questions as to the effect of those limitations on the independence of the Executive could be raised. See, e.g., Buckley, 424 U.S. at 134, 96 S.Ct. 612 (holding that Congress’ constitutional power to regulate elections did not allow it to “vest in itself, or in its officers, the authority to appoint officers of the United States when the Appointments Clause by clear implication prohibits it from doing so”); I.N.S. v. Chadha, 462 U.S. 919, 935 n. 8 & 953 n. 17, 103 S.Ct. 2764, 77 L.Ed.2d 317 (reserving the question of whether Congress “retain[ed] the power ... to enact a law, in accordance with the requirements of Article I of the Constitution, mandating a particular alien’s deportation, unless, of course, other constitutional principles place substantive limitations on such action,” but noting then-Attorney General Jackson’s attack on such a law as “an historical departure from an unbroken American practice and tradition”). But it is to say that the SIAA’s mandate that the government compensate injured parties for the negligent exercise of the Executive’s discretion in implementing the laws does not even arguably do so.
*3702.
Not only does the SIAA not impinge directly on the Executive’s authority to execute the laws, it does not even do so indirectly through the fisc, underscoring even further the constitutionality of the Act as written. The SIAA exposes only the government to liability in tort for its discretionary acts; it leaves both the individual Executive agencies and the Executive officers that serve them free to employ their discretion without concern that the injuries caused by their occasional errors will leave the agency without the means necessary to execute the laws and without concern that personal capacity liability will exist. To this purpose, the SIAA provides that suits be brought against the United States and that judgments be paid, not from the individual agency budgets, but instead from a special fund set up by Congress or, if that fund is exhausted, from the federal treasury. See 46 U.S.C. app. § 748. Thus, just as there can be no argument that the SIAA impairs the Executive’s execution of the laws simply by altering the scope of the Executive’s permissible conduct, see supra at 367-69, there can be no argument that the SIAA does so indirectly by restricting the capacity of the Executive agencies or the willingness of Executive officers to act in execution of the laws. Taken on its own terms, the SIAA plainly does neither.
Executive agencies charged with execution of the laws may act more cautiously or, in certain circumstances, decide not to act where they otherwise would have, concerned with the impact of potential liability on the federal treasury. But, if this is the case, it is so because Congress has made the policy judgment that the government must compensate those that it injures whenever a private individual would have to do so in a like circumstance and has accepted the consequence of this liability. This is a judgment Congress is entitled to make and, as importantly, one that we are not. No less than with the FTCA, the government’s concern that a contrary interpretation would impose “a heavy burden ... on the treasury,” is not itself sufficient to raise constitutional concerns. Rayonier, 352 U.S. at 320, 77 S.Ct. 374. As the Supreme Court explained in Rayo-nier:
Congress was aware that when losses caused by such negligence are charged against the public treasury they are in effect spread among all those who contribute financially to the support of the Government and the resulting burden on each taxpayer is relatively slight. But when the entire burden falls on the injured party it may leave him destitute or grievously harmed. Congress could, and apparently did, decide that this would be unfair when the public as a whole benefits from the services performed by Government employees.
Id. (emphasis added). In the face of such clear instruction, all the more remarkable is the majority’s underlying reasoning that Congress is not empowered under the Constitution to make the same judgment about discretionary functions that the Supreme Court held in Rayonier to be firmly within Congress’ power with respect to “uniquely governmental” ones.
3.
The majority contends that “the Supreme Court has made clear that the discretionary function exception contained in the FTCA is grounded in separation-of-powers concerns,” citing in support of this contention the Supreme Court’s opinion in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 810, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). Ante at 341. The Supreme Court’s decision in Varig Airlines held no such thing, however. In that *371case, the Court set forth the policy considerations that motivated Congress’ creation of a discretionary function exception in the FTCA; it did not say that these motivations originated in concerns about potential separation-of-powers problems. In fact, as the majority is compelled to concede, the phrase “separation of powers” does not appear anywhere in the Court’s opinion. Ante at 341.
The majority dismisses the absence of any mention of separation of powers as nothing more than mere oversight. It writes, “Although Varig does not use the phrase ‘separation of powers,’ the Court’s explanation of the purpose behind the exception makes it clear that the exception is a statutory embodiment of separation-of-powers concerns.” Ante at 341 (emphasis added). The Fifth Circuit may have believed this to be the case, id. (citing Payton v. United States, 636 F.2d 132, 143 (5th Cir.1981) (claiming that, “[t]he crux of the concept embodied in the discretionary function exception is that of the separation of powers”)), but, as even the passage from Varig Airlines relied upon by the majority demonstrates, the Supreme Court has given no indication that it agrees. The majority’s attempt to inject constitutional principle into Congress’ policy judgments via Varig Airlines is untenable, plain and simple.
The relevant passage from Varig Airlines provides as follows,
Congress wished to prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort. By fashioning an exception for discretionary governmental functions, including regulatory activities, Congress took steps to protect the Government from liability that would seriously handicap efficient government operations.
Ante at 341 (quoting Varig Airlines, 467 U.S. at 814, 104 S.Ct. 2755) (emphasis added). This passage not only does not mention separation of powers, it talks plainly and only of the policy considerations that influenced Congress’ decision to create a discretionary function exception in the FTCA. Neither policy consideration, in and of itself, demonstrates — even implicitly — that separation-of-powers concerns motivated Congress’ adoption of a discretionary function exception; necessarily, neither “makes clear” that this was the case. Ante at 341; id. at 348 (citing Varig Airlines for the proposition that separation-of-powers concerns “drove Congress to create the discretionary function exception to the FTCA”).
To begin, that Congress acted out of an aversion to judicial second-guessing does not necessarily imply anything at all as to separation of powers. As the Supreme Court made clear in Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), judicial review of Executive policy decisions is not, without more, an impermissible encroachment on the Executive. See id. at 211, 217, 82 S.Ct. 691 (explaining that separation-of-powers principles require courts to avoid decision “of ‘political questions,’ not ... political ‘cases’ ”). Of course, the mere fact that judicial review of such Executive decisions is permitted by the Constitution does not mean that it is desirable in all cases in which it is available. Congress could therefore decide that the courts should not review (or “second-guess”) a particular class of Executive decisions as a matter of policy, without implying that the authorization of such review would constitute an unconstitutional encroachment on the Executive. In fact, the context in which the Varig Airlines Court describes Congress’ concern about judicial second-guessing suggests, if anything, that Congress made *372just this judgment — and only this judgment — with regard to the FTCA. The next sentence in the Court’s opinion indicates that Congress sought to avoid judicial second-guessing, not because Congress was concerned about the judiciary’s assumption of the Executive function or about the Judiciary’s inability to adjudicate the propriety of the Executive’s discretionary actions, but rather because “judicial second-guessing” could subject the government “to liability that would seriously handicap efficient government operations.” Varig Airlines, 467 U.S. at 814, 104 S.Ct. 2755 (emphases added).
Even less does the fact that Congress decided to include a discretionary function exception in the FTCA “to protect the Government from liability that would seriously handicap efficient government operations,” demonstrate, or even imply, that Congress did so in deference to separation-of-powers principles. Separation-of-powers principles are solely concerned with the inter-relationships between the three constitutional branches of government. Neither Congress’ desire to protect the government from liability nor its interest in promoting efficient government operations relates in any way to these relationships. It may be, as the Supreme Court suggested in Varig Airlines, that the government would operate more efficiently if it were immune from tort liability for the Executive’s negligent discretionary acts, but that Congress has chosen to sacrifice some degree of efficiency in order to provide compensation for persons injured by such acts does not imply anything with regard to the constitutionality of that judgment.
Thus, notwithstanding the majority’s contention to the contrary, Varig Airlines offers no guidance whatsoever as to whether the discretionary function exception is required by separation-of-powers principles.
B.
I .turn then to the majority’s concern that, if the SIAA is construed to waive the government’s immunity for discretionary functions, the judiciary will be called upon to answer questions “it is not equipped to resolve.” Ante at 342. Though the majority does not recognize that it does so, this separation-of-powers concern, at its heart, asks whether the instant case presents issues so far beyond the judicial competence as to pose an essentially political question, rendering the case non-justicia-ble. See Baker, 369 U.S. at 211, 82 S.Ct. 691 (“The nonjusticiability of a political question is primarily a function of the separation of powers.”). Indeed, the majority’s fear that “the judiciary would be called upon to decide issues it is not equipped to resolve,” mirrors the Supreme Court’s recitation of two of the prominent characteristics of non-justiciable cases under the political question doctrine: “a lack of judicially discoverable and manageable standards for resolving [the case];” and “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.” Id. at 217, 82 S.Ct. 691.5
*373Looking to the Supreme Court’s political question jurisprudence as guidance, I agree 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. See, e.g., Coates v. United States, 181 F.2d 816, 817 (8th Cir. 1950) (dismissing suit 4th Cir.government alleging negligence in decision to change the course of the Missouri River). I also agree that these problems may be sufficiently severe in certain cases that a court would be justified in declining to decide a case otherwise properly before it. See, e.g., Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973) (dismissing, on the basis of the political question doctrine, claim challenging “the complex, subtle and professional decision as to the composition, training, equipping and control of a military force”); Dep’t of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988) (refusing to review the Navy’s decision not to grant security clearance to plaintiff).
These separation-of-powers concerns, however, do not warrant the wholesale creation of a broad exception to the SIAA’s waiver of sovereign immunity for all discretionary functions.6 Indeed, separation-of-powers principles, as expressed through the political question doctrine, eschew this sort of sweeping judicial pronouncement. That a case pertains to a discretionary function, even a highly sensitive or political one, is not enough for a case to be deemed nonjusticiable.7 See Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 229, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) (affirming Baker’s observation that “not every matter touching on politics is a political question”); Hopson v. Kreps, 622 F.2d 1375, 1378 (9th Cir.1980) (“The analysis in Baker makes it clear that the criteria there generally do not apply to claims that the executive has exceeded specific limitations on delegated authority.”). As is likely to be relevant to *374the SIAA, the court must also lack “judicially discoverable and manageable standards” for judging the propriety of the Executive action or the standard that exists must require the court itself to make a “policy judgment of a kind clearly for nonjudicial determination.” Baker, 369 U.S. at 217, 82 S.Ct. 691. Accordingly, the inquiry as to whether a particular case is justiciable “is itself a delicate exercise in constitutional interpretation” and must be conducted on a “case-by-case basis.” Id. at 211, 82 S.Ct. 691. On this point, the Supreme Court could not have been more clear:
The doctrine of which we treat is one of ‘political questions,’ not one of political ‘cases.’ The courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing.
Baker, 369 U.S. at 217, 82 S.Ct. 691; see also id. at 211, 82 S.Ct. 691 (providing that “the ‘political question’ label” obscures “the need for case-by-case inquiry”); Schroder v. Bush, 263 F.3d 1169, 1173-74 (10th Cir.2001); Hopson, 622 F.2d at 1378. This passage is not merely hortatory. The question of a case’s justiciability is a “delicate exercise in constitutional interpretation” precisely because the courts are obliged to decide those cases where there are objective, legal standards to guide their decisions, no less than they are obliged to demur when they find themselves without manageable legal principles. See Baker, 369 U.S. at 217, 82 S.Ct. 691 (providing that, “unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence”); cf. Johnson v. Collins Entertainment Co., Inc., 199 F.3d 710, 729 (4th Cir.1999) (Luttig, J., concurring in the judgment) (“If Congress sees fit to provide citizens with a particular cause of action, then we as federal courts should entertain that action — and unbegrudgingly.”).
In light of this command, the majority’s exception of all discretionary functions from the SIAA’s waiver of sovereign immunity is especially unsustainable. Ante at 342-43 (providing that “where the executive’s discretionary functions are at issue, interference from the judicial branch is inappropriate”). For it is a wildly overin-clusive remedy for an ill that is likely to appear only in a relatively small set of cases. In the vast majority of claims involving the Executive’s discretionary functions, the courts will not find themselves bereft of “judicially discoverable or manageable standards” or compelled to make “a policy judgment of a kind clearly for nonjudicial discretion,” see Baker, 369 U.S. at 217, 82 S.Ct. 691, even if the governmental actions or omissions that those courts are reviewing were themselves made for policy or political reasons.8 See, e.g., Graves v. United States, 872 F.2d 133 (6th Cir.1989) (suit against government involving its placement of signs around dam); B & F Trawlers, Inc. v. United States, 841 F.2d 626 (5th Cir.1988) (suit against government for negligence in *375“care, custody and control” of seized vessel); Faust v. South Carolina State Highway Dep’t, 721 F.2d 934 (4th Cir.1983) (suit against government for Coast Guard and Army Corps of Engineer’s failure to mark a ferry cable across a navigable waterway); Bearce v. United States, 614 F.2d 556 (7th Cir.1980) (suit against government for Coast Guard’s failure to erect a light at the end of a harbor); Meagher v. United States, 170 F.Supp.2d 960 (N.D.Cal.2001) (suit against the government for decision to donate ship without removing certain bulkheads); Eazor Express, Inc. v. United States, 611 F.Supp. 197 (E.D.N.Y.1985) (suit against the government for decision to allow independent contractor to dredge in the vicinity of support bulkheads). In fact, as the majority itself explains, the courts regularly entertained challenges brought under the SIAA to discretionary government actions prior to the Act’s amendment in 1960, and review of each of these cases bears out that the courts were more than competent in applying standard tort law principles to the government’s discretionary functions.9 Ante at 346-48. In eases brought under the SIAA, the courts are not called upon to decide whether the Executive’s decision was wise as a matter of policy. Rather, they are called upon to decide only whether what Congress and the President determined to do as a matter of policy was done negligently. The courts must not, and, under Supreme Court precedent, cannot, avoid decision of these cases — and thereby deny to the injured parties that which the SIAA provides to them — on the speculation that it would be improper for them to adjudicate related, but different, claims.
Reference to the case before the court today makes this point forcefully. The plaintiffs have sued the government to recover damages for the injuries they incurred when they plummeted twenty-five feet over a dam. They allege that the government had a duty to warn them about the existence of this dam and that the signs the government posted in an attempt to fulfill this duty were inadequate to do so. Both questions are readily susceptible to judicial resolution under established principles of tort law, as the panel opinion’s able discussion readily demonstrates, see McMellon v. United States, 338 F.3d 287, 293-306 (4th Cir.2003) (holding, after a lengthy discussion, that the *376government had a duty to warn the plaintiffs); id. at 313-15 (Niemeyer, J., dissenting) (reaching the opposite conclusion, also on the basis of tort law principles), and neither question raises even a hint of separation-of-powers concerns. In such a case, the SIAA entitles the plaintiffs to their day in court, and, in my judgment, the court errs by denying it to them.
C.
The weakness of Judge Wilkinson’s concurrence renders his opinion a millstone for the majority; indeed, through his opinion, one can sense the desperateness in the majority’s analysis. Resting, as it does, exclusively on attempted policy rationales and offering nothing at all in the way of legal analysis, the concurrence is little short of a full admission that the majority’s holding actually violates the very separation-of-powers principles in the name of which it embraces its interpretation of the SIAA.
1.
Judge Wilkinson approaches decision of the question before us as if he were an interested legislator, rather than a neutral interpreter of a legislature’s enactment. Instead of determining what the law is, he undertakes to determine what, in his view, the law should be. Thus, when he insists that “any different result [than the one he reaches] would not be supportable!,]” ante at 350, it is plain upon reading his opinion that he believes this so only in the sense that a different result would not meet with his view of the result most desirable as a matter of policy preference, not because a different result would be unsupportable in law. In fact, Judge Wilkinson fully joins in the court’s opinion holding that the SIAA unambiguously does not contain a discretionary function exception, a joinder inconsistent with any other understanding of his opinion.
With scarcely even a mention of the statute that Congress enacted and that we are charged with interpreting, Judge Wilkinson speaks repeatedly in the language of legislative deliberation. Throughout his opinion, he references what we are asked to do, as if Congress’ actions were irrelevant. Illustrative is the following:
[A]ppellants ask us to go much, much farther [than declaring the discretionary function exception inapplicable to this case] — 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.
Ante at 350. But appellants do not ask of us what Judge Wilkinson says they do. They ask only that we interpret the statute as it was written by Congress. And, of course, this is all that we are empowered to do. Notwithstanding Judge Wilkinson’s suggestion to the contrary, we are not empowered, in this case of straightforward statutory interpretation, to formulate the desirable scope of sovereign immunity ex cathedra.
Judge Wilkinson believes that the principle that waivers are to be “narrowly construed” is relevant in this case, and he charges that appellants have asked the court both “to indulge in effect the broadest possible waiver of sovereign immunity for the performance of every discretionary government function and to disregard the principle that such waivers of immunity must be narrowly construed.” He is mistaken on both counts, not only as to the governing law, but also as to the arguments advanced by appellants.
As to the law, the principle that, absent the applicability of any other principle of interpretation, waivers are to be construed *377narrowly quite obviously does not even have any arguable application in this context. The waiver in the SIAA is unambiguous, as the majority opinion that Judge Wilkinson joins concludes. See ante at 339. Thus, under Supreme Court authority, there is no waiver that can permissibly be narrowed — or enlarged, for that matter. Congress has determined the scope of waiver in the SIAA, and that scope may not be altered by judicial gloss of the kind superimposed by Judge Wilkinson.
As to the arguments made by appellants, nowhere do they ask that the principle that waivers be narrowly construed be disregarded; Judge Wilkinson's charge in this respect is but convenient strawman. Appellants understand, as does the majority, that that principle is altogether inapplicable in this case. And, of course, neither do they ask the court to “indulge in effect the broadest possible waiver of sovereign immunity for the performance of every discretionary government function.” Ante at 350 (Wilkinson, J., concurring). This, too, is convenient hyperbole. All that appellants ask us to “indulge” is Congress’ intent in enacting the SIAA, as revealed by conventional statutory interpretation. It is conventional statutory interpretation that disposes of this case, and it is precisely such that forecloses Judge Wilkinson’s interpretation. It is true that sovereign immunity waivers should not be “enlarged beyond what the [statutory] language requires[,]” U.S. Dep’t of Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992) (internal quotations omitted), as Judge Wilkinson notes. See ante at 350. But conventional statutory interpretation does not require or even entail such an enlargement.
With his misplaced view of the question before us as a guide — that is, the desirability, as opposed to the applicability, of a discretionary function exception — Judge Wilkinson decides the interpretive question presented by importing wholesale into the SIAA a discretionary function exception from an entirely different statute, the FTCA. This he does (quite remarkably) at the same time, and even though, he joins the majority’s holdings both that the SIAA unambiguously omits such an exception and that the FTCA’s exception cannot provide a basis for reading an exception into the SIAA because ,“[i]f the exception remained as important to Congress in 1960 when it amended the SIAA as it was when the FTCA was enacted, then it stands to reason that Congress would have written the exception into the SIAA then.” Ante at 339 (citing Binder v. Long Island Lighting Co., 933 F.2d 187, 193 (2nd Cir.1991)).
Notwithstanding his asserted agreement with the majority, Judge Wilkinson concludes, inconsistently with the majority and in sleight of hand, that “[t]he 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).” Ante at 350. He observes that the “discretionary function test in the FTCA” is carefully crafted language that resolves this case. Ante at 352. All of this as if we were interpreting the FTCA. Though I would have thought it obvious, it apparently warrants noting that the statute at issue today is not the FTCA, 28 U.S.C. § 2680(a), as Judge Wilkinson seems to believe, but, rather, the SIAA, 46 U.S.C. §§ 741-52. Thus, Judge Wilkinson’s statement that the language that the court interprets has been “carefully crafted” and “resolves this case,” ante at 351 must be understood as what it is, incredible. For, by the “carefully crafted” language, Judge Wilkinson means not the language in the SIAA, but, rather, the language in the FTCA, language that does *378not even appear in the act that we are called upon to interpret today.
Judge Wilkinson suggests that interpreting the SIAA not to include an exception for discretionary functions, “jettison[s] congressional language tailored to this very context — governmental tort liability.” Ante at 352. This suggestion is likewise incredible as a judicial observation: The language that Judge Wilkinson suggests would be “jettisoned” does not even appear in the statute we are interpreting. In fact, so confused is the concurrence that this is the entire point of the dissent, not the majority: Congress “jettisoned” from the SIAA the exception that it chose to include in the FTCA. And it is this fact that confirms that there is no discretionary function exception in the SIAA and that none was intended — at least under established principles of law.
Unconcerned by the methodological in-defensibility of importing into one statute in applicable language from an entirely different statute (not to mention the inde-fensibility of doing so, while at the same time acknowledging the inapplicability of that statutory language), Judge Wilkinson defends his eye-opening mode of interpretation by arguing that “[t]he fact that we have at hand such 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.” Ante at 351 (emphasis added). Whether or not the majority, in whose opinion Judge Wilkinson joins but with whom he demonstrably disagrees almost entirely, is on a “statutory frolic” in its different and conflicting analysis, such a mix-and-match of admittedly inapplicable language from different statutes as that performed by Judge Wilkinson certainly does constitute a “statutory frolic,” at least under conventional canons of statutory interpretation. Even putting aside Judge Wilkinson’s own acknowledgment that the language from the FTCA that he would import into the SIAA is not applicable, traditional statutory interpretation not only does not require, it forbids, us to mine all extant statutes, relevant or not, for language that would have decided the issue if Congress had chosen to include it in the statute under consideration. Suffice it to say that this “method of interpretation” is no more legitimate if we only include language from other statutes if, in our view, Congress had “no practical reason for differentiating” between the two acts. Ante at 352 (Wilkinson, J., concurring). The judgment that Congress had no practical reason for differentiation is naked policy judgment.
2.
The policy decisions that inform Judge Wilkinson’s interpretation would be at least somewhat more palatable if they were attended by legal analysis in support of (even if only incidentally) the policy objectives that underlay the decisions. But instead of identifying particular constitutional impediments to the application of this unambiguous statute as it is incumbent upon him to do, Judge Wilkinson merely references nonspecific separation-of-powers “concerns” and offers roaming generalities about the importance of Executive discretion. Though speaking generally and loosely throughout his opinion of separation-of-powers “concerns,” he never once attempts to identify these “concerns” and he provides no constitutional authority that even hints that his “concerns” might require his conclusion as a matter of law.
Judge Wilkinson notes, for example, that “[t]he executive has an explicit, not an implicit, duty to see that the laws are faithfully executed.” Ante at 350 (citing U.S. Const, art. II, § 3). That the Executive has an explicit duty to execute the *379laws is of course true — but in this context, utterly irrelevant. Rather than detailing how the Executive’s constitutional duty is impeded by the SIAA as written, Judge Wilkinson goes on to assert conclusorily that “[t]his duty cannot be discharged without the exercise of some discretion.” Ante at 350. Again, it is not disputable, nor do I dispute, that “some discretion,” such as the “Executive’s exercise of its core prosecutorial discretion,” is fundamental to Executive power. Supra at 369. But this is to say nothing of relevance to the disposition of this case. Talismanic reference to Article II simply does not substitute for legal analysis addressing the question of whether the limit on Executive discretion imposed by Congress in the SIAA impermissibly infringes on those Article II powers. Judge Wilkinson attempts no answer whatsoever to the only relevant question of what it is about the SIAA as enacted that offends separation-of-powers principles so grievously, even in light of the protection afforded Executive discretion under the political question doctrine.
Nor does Judge Wilkinson’s analogy to qualified immunity serve, even indirectly, as the identification of a separation-of-powers “concern” that would authorize this court’s refusal to apply the SIAA as written. Judge Wilkinson references this “concern” in this way:
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.
Ante at 350. But reference to a common law immunity that is read into the “general language of § 1983” provides no support for reading an exception into a statute that unambiguously waives immunity.
Perhaps realizing that Congress has the authority to override common law immunities through the use of express waivers— like the SIAA — Judge Wilkinson claims that “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,” ante at 350 n. 1, thereby implying that the same separation-of-powers concerns that supposedly underlie qualified immunity are relevant to the disposition of this case. Of course, Judge Wilkinson is able to cite no authority for his claim that qualified immunity under section 1983 vindicates constitutional separation-of-powers concerns. And this is unsurprising: The Supreme Court has repeatedly rooted such immunity in the common law, not the Constitution. See Scheuer v. Rhodes, 416 U.S. 232, 241, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (noting that the Constitution provided limited immunity for legislators, but that “immunity for the other two branches — long a creature of the common law — remained committed to the common law”); Owen v. City of Independence, 445 U.S. 622, 634, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) (“[Section] 1983 immunity” is “predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interest behind it.”).
Though he believes otherwise, see ante at 351 (Wilkinson, J., concurring) (quoting United States v. SA. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)), Varig Airlines is similarly unavailing as support for Judge Wilkinson’s disregard of the SIAA’s text on the grounds of separation-of-powers “concerns.” The fact that the Court in Varig Airlines took note of Congress’ concern *380that the absence of a discretionary function exception in the FTCA would result in too much “judicial second-guessing” does not imply that Congress believed — let alone that this court must hold — that this sort of “judicial second-guessing” was a violation of constitutional principles of separation of powers in the FTCA, much less that it would be such in the SIAA. Judge Wilkinson colorfully, but analytically meaninglessly, notes that “[e]ven in our modern age, however, some things are indeed what they seem.” Ante at 351. He draws from the fact that Congress wanted to limit judicial power in the context of the FTCA that “[t]he discretionary function exception expresses Congress’ view of that degree of ‘separation’ required by the executive branch to carry out its duties.” Id. Of course, this is not at all what is most naturally and reasonably to be inferred from Congress’ inclusion of a discretionary function exception in the FTCA. All that can be legitimately inferred is that Congress believed as a policy matter and with respect to those matters covered under the FTCA that a limitation on the role of the courts of the kind enacted was preferable. An inference, from the inclusion of this exception, as to broad congressional intent regarding the constitutionally mandated structure of government across the whole of the United States Code, of the kind that Judge Wilkinson draws, is not even plausible as a matter of interpretation.
Finally, in what is presented as the jewel in his crown of authority in support of his interpretation, Judge Wilkinson resorts to what he grandiosely refers to as the “considered wisdom of ten other circuit courts of appeals.” But this last effort fares hardly better than any of his other efforts. We do not determine whether to invalidate a statute based on what our sister circuits have done, and I would not have thought one would want to be seen as proceeding in this way. Judicial interpretation is not an exercise in poll-taking, or at least it should not be. In any event, Judge Wilkinson himself does not even appear to believe that we are in receipt of especial wisdom from our sister circuits on the question with which we are today presented. He joins fully in the majority’s opinion that all but says (and it, correctly) what is, at least by connotation, precisely the opposite. See ante at 344 (noting the “cursory analysis” of our sister circuits on the issue we address herein).
3.
As telling as Judge Wilkinson’s failure to identify any constitutional or statutory authority for his conclusion is his complete avoidance of the one doctrine — the political question doctrine — that does indisputably resolve any valid separation-of-powers concerns that might exist under the interpretation compelled by the statute’s language.
Judge Wilkinson asserts that the failure to imply a discretionary function exception to the SIAA will subject the United States 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.” Ante at 351. However, he does not explain how these hypotheticals are beyond the reach of the political question doctrine, and indeed does not even assert that the doctrine will be unable to resolve them. And, in fact, the political question doctrine is well suited to answering questions such as those Judge Wilkinson rhetorically poses. See supra at 372-76. See also Gilligan, 413 U.S. at 10, 93 S.Ct. 2440. If this were not otherwise evident, Judge Wilkinson himself has previously said as much, holding in Tiffany, 931 F.2d at 277-79 (quoting Baker v. Carr, 369 U.S. at 217, 82 S.Ct. 691), that, even where “the discretionary *381function exception alone does not capture all the important aspects of [the] case,” there was no judicial review of a midair collision between military and civilian aircraft because “[j]udges have no ‘judicially discoverable and manageable standards for resolving’ whether necessities of national defense outweigh risks to civilian aircraft” and cannot “undertake independent resolution without expressing lack of the respect due coordinate branches of government.”
Judge Wilkinson’s only criticism of the political question doctrine is that it “substitutes] ... a judicially-derived doctrine for congressionally-crafted language,” ante at 352, implying that this case calls upon the court to choose between two competing exceptions to Congress’ waiver of sovereign immunity, one devised by Congress and the other developed by the judiciary. Of course, there is no such choice presented to us in this case. In the face of Congress’ clear and unequivocal waiver of sovereign immunity in the SIAA, the courts are not authorized to choose the level or type of Executive activity that they believe should be excepted from the SIAA’s waiver. And this limit on our authority obtains even when we believe — if not especially when we believe — as Judge Wilkinson emphatically does, that the level of liability created by the Act’s broad waiver of immunity would unduly hamper government operations, see ante at 351-52. Indeed, the courts are constitutionally barred from making such a legislative determination under the circumstances here. We are under obligation to adjudicate all claims authorized by the language of the SIAA, unless the decision of those claims would itself violate (not merely raise “concerns” as to) separation-of-powers principles.
While the political question doctrine brings the court face-to-face with the separation-of-powers inquiry, see Baker, 369 U.S. at 211, 82 S.Ct. 691 (providing that the political question doctrine is “primarily a function of the separation of powers”), the application of the discretionary function exception does not, supra at 374-76. And, on this point as well, Judge Wilkinson’s silence is telling: although he allows that the government’s alleged failure to post signs before a dam in this case may constitute a discretionary function, he does not even begin to explain how a court’s application of tort law principles to that decision would violate the doctrine of separation of powers.
4.
In sum, in order to offer any support whatsoever for the majority (with whom he essentially disagrees) and the interpretation that he favors (which is irreconcilable with the majority’s, with which he claims full agreement), Judge Wilkinson must at least identify the Executive discretion that is both violated by the SIAA’s unambiguous waiver of sovereign immunity and unprotected by the political question doctrine. This issue, he fails even to address, offering instead only vague platforms about the importance of Executive discretion. In the end, such but serves as powerful reinforcement of the sense that lingers after reading the majority opinion, namely, that even were it legitimate to support the majority’s interpretation with arguments of judicial policy preference, which to its credit the majority does not attempt and which Judge Wilkinson dares to attempt but fails to succeed in doing, that interpretation cannot possibly be supported as a matter of law. And, of course, it is only the latter with which we ought be concerned.
III.
Just as the principle of separation of powers directs that courts be wary of ex*382ceeding their prescribed role to adjudicate “cases and controversies,” it also charges that they be vigilant in fulfilling their constitutional obligation to decide the cases properly before them. In a narrow set of cases which the Supreme Court has denominated “political questions,” this obligation must give way in favor of even more pressing constitutional imperatives. Yet, in all cases, the determination of whether a case is sufficiently outside the judicial competence to decide, constitutes a “delicate exercise in constitutional interpretation,” one that may only be undertaken on a case-by-case basis. Baker, 369 U.S. at 211, 82 S.Ct. 691. The majority’s decision today to exempt from the SIAA’s waiver of sovereign immunity all liability arising from the government’s discretionary functions, carelessly abandons this cautious case-by-case analysis in favor of a categorical exception. This decision, though purporting to be grounded in the principle of separation of powers but which Judge Wilkinson’s opinion reveals to be nothing more than a naked policy judgment, actually constitutes an affront to this principle, by usurping the legislative prerogative that it professes to protect and abdicating judicial responsibility where the Constitution requires that it be exercised — both out of a perceived need to guard against an encroachment on the Executive power that does not even arguably exist.
The SIAA clearly expresses the will of Congress that individuals injured by the government be permitted to maintain suit against it wherever they could maintain a suit against private individuals in a like situation. The majority itself recognizes that this was the “clear and unequivocal” intent of Congress. I would give interpretative effect to this clearly expressed will, as we are required to do, and I dissent from the majority’s failure to do so.
. The Assistant Attorney General allowed that, "claims of the kind embraced by the discretionary function would have been exempted from the waiver of sovereign immunity by judicial construction,” even if such an exemption was not expressly included in the FTCA. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 810, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).
. The evidence with regard to the history of congressional action is even stronger than the majority explains. The SIAA was enacted in 1920, predating enactment of the FTCA (and the discretionary functions exception that the majority now holds must be “read into" the SIAA) by 26 years. Prior to its amendment in 1960 to include maritime activities previously covered by the FTCA, the SIAA, along with the Public Vessels Act (PVA), waived the government's immunity from suit for injuries caused by public or merchant vessels. Just as now, the SIAA’s waiver of sovereign immunity did not include any exceptions. Accordingly, as the majority recounts, both Acts were interpreted by the Supreme Court and the lower courts to apply to allegedly tortious actions of the government that would surely have fallen under the discretionary functions exception if a similar claim were raised under the FTCA. See ante at 347-48 (listing lower court cases); Canadian Aviator, Ltd. v. United States, 324 U.S. 215, 65 S.Ct. 639, 89 L.Ed. 901 (1945) (holding the guidance of a Navy control boat during World War II to be within the coverage of the PVA); McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954) (holding the government’s decision to allow Chinese soldiers aboard a ship to be negligent in light of well-known risk of polio).
The 1960 amendment expanded the range of governmental activities for which the SIAA subjected the government to liability beyond those taken by public and merchant vessels, to include all maritime actions, but it did nothing to alter the broad scope of the SIAA's waiver of immunity. Thus, contrary to the government’s argument, the only permissible inference from this history is that the government must be held liable for those activities that the 1960 amendment expanded the SIAA so as to include, for the same range of conduct for which it had been held liable prior to the amendment.
. Thus, for example, the majority would have the reader believe that the court “do[es] not consider” whether, within the bounds of the Constitution, Congress would have the power to subject the government to liability for its discretionary acts if it chose to do so, ante at 343-44 & n. 5, because it ultimately con-eludes that the SIAA is "silent” as to whether it includes an exception for discretionary acts, eliminating any need to decide the larger constitutional question. As explained infra, however, the court's own analysis betrays that it does not believe that the SIAA is "silent” on this point.
. Judge Wilkinson, in his separate opinion, argues that "the discretionary function exception is ... 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." Ante at 350 (Wilkinson, J., concurring).
Of course, this comparison overlooks the critical distinction between suits brought pursuant to the SIAA and actions brought under 42 U.S.C. § 1983, and, thereby, greatly exaggerates any disruption in Executive action which liability under the SIAA would create. Actions brought under 42 U.S.C. § 1983 are filed against the officer in his personal capacity and subject the officer himself to liability. Absent a protection for actions taken where "the law did not put the officer on notice that his conduct would be clearly unlawful,” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), such possibility of personal ruin would doubtless cause Executive officers to act with an overabundance of caution. See Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Suits under the SIAA, in contrast, do not raise the same concerns because they are brought against the United States and produce damages awards assessable against the federal fisc, not the relevant Executive officer. See infra at 370-71 (citing 46 U.S.C. app. § 748).
It may still be that some officers of the government, not wanting to subject their government to a claim in negligence, may act with added care, but any such influence would be minuscule when compared to the prospect of personal liability, as the Supreme Court has repeatedly recognized. Compare Owen v. City of Independence, 445 U.S. 622, 656, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) ("The inhibiting effect [of liability] is significantly reduced, if not eliminated, however, when the threat of personal liability is removed."); Lake Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 405 n. 29, 99 S.Ct. 1171, 59 L.Ed.2d 401 ("|T]he justifications for immunizing officials from personal liability have little force when suit is brought against the governmental entity it*368self.”); Berkley v. Common Council City of Charleston, 63 F.3d 295, 301 (4th Cir.1995) (en banc) with id. at 305 (Wilkinson, J., dissenting) (arguing that, "as a practical matter, [concerns about the effect of subjecting individual legislators to liability] are no less powerful when the legislative entity itself is sued”).
Judge Wilkinson also contends, in considerable overstatement, that, "[s]horn of a discretionary function exception, the executive branch would be profoundly impaired in carrying out the very functions that Congress has assigned to it.” Ante at 351-52 (Wilkinson, J., concurring). Not only can this contention not be squared with the fact that this Circuit has, with two arguable exceptions, subjected the government to liability for its discretionary functions since the SIAA's enactment in 1920 without any serious disruption in the functioning of the Executive. See Lane, 529 F.2d at 179; United States v. The S.S. Washington, 241 F.2d 819, 821 (4th Cir.1957); Pacific-Atlantic S.S. Co. v. United States, 175 F.2d 632 (4th Cir.1949). But it is also irreconcilable with the numerous other avenues that Congress has provided for challenging the propriety of discretionary Executive action, even prior to the Executive's ability to take that action. See, e.g., infra at 370-71 (discussing the opportunity for judicial review provided in NEPA and the APA).
. The six independent tests for the existence of a political question set forth in Baker are:
[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of the government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrass*373ment from multifarious pronouncements by various departments on one question.
Baker, 369 U.S. at 217, 82 S.Ct. 691. To the extent that the majority's separation-of-powers concerns extend beyond those identified in the second or third of these tests to other of the six conditions listed in Baker, I do not believe that those additional concerns would alter, in any meaningful way, a court's calculus in determining whether any particular case presented a political question. And, in any event, my ultimate conclusion — that the political question doctrine is sufficient to address separation-of-powers issues that may arise from suits brought under the SIAA— remains unchanged.
. Again in overstatement, Judge Wilkinson contends that, if the SIAA is interpreted not to include a discretionary function exception, the Executive would be "disable[d] ... from invoking separation-of-powers principles via its discretionary functions as a defense to unlimited tort liability.” Ante at 351 (Wilkinson, J., concurring). Of course, this is not so. The discretionary function exception is not coterminous with that which separation-of-powers principles forbids the court from deciding. Separation-of-powers principles bar the courts from deciding political questions, not political cases. Baker, 369 U.S. at 210-11, 82 S.Ct. 691. Thus, even absent a discretionary function exception, the government may vindicate its concerns about separation of powers by arguing, for instance, that the issues the court is called upon to resolve in any given case present essentially political questions and, therefore, that the case is non-justiciable.
. In the administrative law context, the courts are regularly called upon to consider the propriety of the Executive's policy decisions, and, within broad limits, see Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (providing that there is a "narrow” exception to reviewability of agency action under the APA for those instances in which "no judicially manageable standards are available for judging how and when an agency should exercise its discretion”), the courts have embraced the opportunity.
. In confirmation of the courts’ competence in this respect, the courts have universally held that municipalities may be subjected to liability under 42 U.S.C. § 1983, both for the discretionary acts of their Executive officials and even for the unconstitutional enactments and actions of their local legislature. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) (discretionary actions); Berkley v. Common Council of the City of Charleston, 63 F.3d 295 (4th Cir.1995) (en banc) (legislative enactments).
. The majority’s attempt to mitigate the significance of these decisions falls flat. Ante at 348 (suggesting that "the failure to address the issue [of separation of powers] could ... be attributed to ... the government’s failure to press the issue”). Whether or not the government raised the separation-of-powers issue, the fact of the courts’ adjudication of the challenged government actions in the five cases cited by the majority by itself establishes that the Supreme Court and the courts of appeals that decided them viewed the discretionary functions involved therein to be readily susceptible to judicial review. And nothing more is required to demonstrate that, contrary to the majority's assertion, separation-of-powers principles do not bar the judiciary from adjudicating the legality of a significant portion of the Executive's discretionary functions.
The two cases which the majority relies upon for its assertion that the caselaw was "ambiguous” prior to 1960, Mandel v. United States, 191 F.2d 164 (3d Cir. 1951), aff'd sub nom. Johansen v. United States, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051 (1952), and Dougherty Co. v. United States, 207 F.2d 626 (3rd Cir. 1953) (en banc), are the exceptions that prove the rule. See ante at 347. In both cases, the Third Circuit refused to decide claims questioning the judgment of military authorities made under extreme duress, claims the courts have long held to be non-justiciable. See Gilligan, 413 U.S. at 9, 93 S.Ct. 2440; Tiffany, 931 F.2d at 278-79. Such cases do not, of course, prove that, before 1960, some courts held the Judiciary to be incompetent to adjudicate the propriety of the Executive’s discretionary functions writ large, as the majority does today.