| Syllabus | Opinion [ Breyer ] | Dissent [ Stevens ] | Dissent [ Scalia ] | Dissent [ Thomas ] |
|---|---|---|---|---|
| HTML version PDF version | HTML version PDF version | HTML version PDF version | HTML version PDF version | HTML version PDF version |
DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, et al., PETITIONERS v. ILLINOIS COUNCIL ON LONG TERM CARE, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
[February 29, 2000]
Justice Scalia, dissenting.
I join the opinion of Justice Thomas except for Part III, and think it necessary to add a few words in explanation of that vote: I am doubtful whether Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986), was correctly decided, but that case being on the books, and involving as it does a question of statutory interpretation, I believe it requires affirmance here. There is in my view neither any basis for holding that 42 U.S.C. § 1395ii has a different meaning with regard to Part A than with regard to Part B, nor (since repeals by implication are disfavored) any basis for holding that the subsequent addition of a judicial-review provision distantly related to §1395ii altered the meaning we had authoritatively pronounced. See post, at 7, n. 7 (Thomas, J., dissenting).
I do not join Part III of Justice Thomas’s opinion because its reliance upon what it calls the presumption of preenforcement review suggests that Michigan Academy was (a fortiori) correctly decided. I might have thought, as an original matter, that the categorical language of §1395ii and §405(h) overcame even what Justice Thomas acknowledges is the stronger presumption of some judicial review. See post, at 14. With regard to the timing of review, I would not even use the word “presumption” (a term which Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), applies only to the preference for judicial review at some point, see id., at 140) since that suggests that some unusually clear statement is required by way of negation. In my view, preenforcement review is better described as the background rule, which can be displaced by any reasonable implication (“persuasive reason to believe,” as Abbott Laboratories put it, ibid.) from the statute.