Cite as: 529 U. S. 1 (2000)
Thomas, J., dissenting
tions, but instead mounts a general challenge to the Secretary's regulations (and manual) prescribing inspection and enforcement procedures for the teams that survey participating nursing homes, 59 Fed. Reg. 56116 (1994), claiming that these were promulgated without notice and comment, are unconstitutionally vague, contravene the Medicare Act's requirement of enforcement consistency, and violate due process by affording insufficient administrative review. Like the Michigan Academy plaintiffs, who challenged the Secretary's regulation concerning the payment of benefits for physicians' services, 476 U. S., at 668, respondent may proceed in District Court under general federal-question jurisdiction.
Perhaps recognizing that this result follows straightforwardly from what our Michigan Academy opinion actually says, the majority creatively recasts that decision as having established an exception to § 1395ii's incorporation of § 405(h): Section 1395ii will not apply "where its application to a particular category of cases, such as Medicare Part B 'methodology' challenges, would not lead to a channeling of review through the agency, but would mean no review at all." Ante, at 17. In doing so, the Court confuses the reasoning (more precisely, one half of the reasoning) of Michigan Academy with the holding in that case. In Michigan Academy, we undoubtedly relied on the reality that, if the challenge to the Secretary's regulations were not allowed to proceed under general federal-question jurisdiction, the Secretary's administration of Part B benefit amount determinations would be entirely insulated from judicial review, a result in tension with the " 'strong presumption that Congress did not mean to prohibit all judicial review' of executive action." 8 476 U. S., at 681 (quoting Dunlop v. Bachow-8 The majority opinion may enjoy the "virtu[e] of consistency with Michigan Academy's actual language," ante, at 19—but only some of the language, and not the most important part. As I explain in the text, the language that the majority opinion purports to track merely sets forth one of the two rationales for the holding in Michigan Academy. My reading
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