BREYER, J., dissenting
in rejecting this interpretation, has improperly (and needlessly) “ignore[d] persuasive evidence of Congress’ actual purpose.” West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 115 (1991) (Stevens, J., dissenting); cf. Johnson v. United States, 163 F. 30, 32 (CA1 1908) (Holmes, J.) (“[I]t is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before”).
If I am right, and if the Court’s opinion will cause serious confusion or delay, Congress can, through legislation, fix the Court’s mistake. “But legislative action takes time; Congress has much to do; and other matters . . . may warrant higher legislative priority.” Milner v. Department of Navy, 562 U. S. 562, 592 (2011) (BREYER, J., dissenting). Rather than requiring Congress to “revisit the matter” and “restate its purpose in more precise English,” Casey, 499 U. S., at 115 (Stevens, J., dissenting), I would hold that the Medicare Act only requires notice and comment for what this Court has traditionally considered to be substantive rules. I would remand for the Court of Appeals to decide in the first instance whether the agency’s decision in this case qualifies as a substantive or an interpretive rule.
For these reasons, I respectfully dissent.
