BREYER, J., dissenting
the APA’s notion of a substantive rule. See ibid.
Even putting the drafting history aside, there are many reasons why Congress might have chosen to spell out the governing standard rather than rest upon an explicit cross-reference to a portion of the APA. Section 1395hh(a)(2), for example, reflects Congress’ judgment that rulemaking is necessary only for a certain subset of substantive rules—namely, those governing “the scope of benefits, the payment for services, or the eligibility” for benefits or services. A simple cross-reference to the APA’s interpretive-rule exception would not have adequately captured this judgment. The APA’s exception would have exempted interpretive rules, but Congress also wanted to exempt those substantive rules that do not govern benefits, payment, or eligibility. True, Congress could have produced the same result by first amending the statute to require notice-and-comment for any regulation governing benefits, payment, or eligibility and then cross-referencing the interpretive-rule exception. But the language of §1395hh(a)(2) accomplishes both of those tasks at once.
And even were that not so, there is no rule requiring Congress to use cross-references. As I have explained, the Medicare Act’s notice-and-comment provisions already operate by way of three cross-linked subsections. See supra, at 2−3. Given the complexity of this scheme, I would not second-guess Congress’ decision not to add yet another cross-reference here.
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Given the statute’s context, its language, its history, and related practical consequences, I believe that Congress intended the provision before us to apply to all substantive rules, irrespective of the labels that the agency affixed. Congress did not, however, intend the provision to require notice and comment for interpretive rules that, by definition, lack the force and effect of law. I fear that the Court,
