Page:Azar v. Allina Health Services, 587 U.S. (2019) (slip opinion).pdf/21

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JUSTICE BREYER, dissenting.

The statute before us, a subsection of the Medicare Act, refers to a “rule, requirement, or other statement of policy. . . that establishes or changes a substantive legal standard.” 42 U. S. C. §1395hh(a)(2). This phrase is nested within a set of provisions that, taken together, require the Secretary of Health and Human Services to use notice-and-comment rulemaking before promulgating “regulations.”

The Government argues that the language at issue, like the notice-and-comment provisions of the Administrative Procedure Act (APA), applies only to “substantive” or “legislative” rules. In its view, the language does not cover “interpretive” rules (which it believes the agency promulgated here). After considering the relevant language, the statutory context, the statutory history, and the related consequences, I believe the Government is right. I would remand this case to the Court of Appeals to consider whether the agency determination at issue in this case is a substantive rule (which requires notice and comment) or an interpretive rule (which does not).

The arguments in support of my interpretation are