Page:Azar v. Allina Health Services, 587 U.S. (2019) (slip opinion).pdf/13

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AZAR v. ALLINA HEALTH SERVICES

Opinion of the Court

ments, it could have easily cross-referenced that exemption in exactly the same way. Congress had recently done just that, cross-referencing both of the APA’s exceptions in the Clean Air Act. See §305(a), 91 Stat. 772, 42 U. S. C. §7607(d)(1). Yet it didn’t do the same thing in the Medicare Act, and Congress’s choice to include a cross-reference to one but not the other of the APA’s neighboring exemptions strongly suggests it acted “ ‘intentionally and purposefully in the disparate’ ” decisions. Russello v. United States, 464 U. S. 16, 23 (1983).

The government’s response asks us to favor a most unlikely reading over this obvious one. The government submits that Congress simply preferred to mimic the APA’s interpretive-rule exemption in the Medicare Act by using the novel and enigmatic phrase “substantive legal standard” instead of a simple cross-reference. But the government supplies no persuasive account why Congress would have thought it necessary or wise to proceed in this convoluted way. The dissent suggests that a cross-reference could not have taken the place of other language in §1395hh(a)(2) limiting the notice-and-comment requirement to rules governing benefits, payment, or eligibility, post, at 17; but we can’t see why this would have made a cross-reference less desirable than the phrase “substantive legal standard” as a means of incorporating the APA’s interpretive-rule exemption. So we’re left with nothing but the doubtful proposition that Congress sought to accomplish in a “surpassingly strange manner” what it could have accomplished in a much more straightforward way. RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U. S. 639, 647 (2012); see Advocate Health Care Network v. Stapleton, 581 U. S. ___, ___ (2017) (slip op., at 8) (“When legislators did not adopt ‘obvious alternative’ language, ‘the natural implication is that they did not intend’ the alternative”).

The dissent would have us disregard all of the textual