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TERM CARE, INC. Thomas, J., dissenting
seek to bring a preenforcement challenge to the Secretary's regulations under the Medicare Act.16
* * *
Instead, I would hold that § 1395ii, as interpreted by Michigan Academy, does not in this case incorporate § 405(h)'s preclusion of federal-question jurisdiction, especially in light of the presumption in favor of preenforcement review. I respectfully dissent.
16 The majority betrays its misunderstanding of the relationship between the presumption in favor of preenforcement review and ripeness doctrine when it says that "any . . . presumption [in favor of pre-enforcement review] must be far weaker than a presumption against preclusion of all review in light of the traditional ripeness doctrine, which often requires initial presentation of a claim to an agency." Ante, at 19- 20. I do not dispute that respondent must demonstrate that its claims are ripe before the District Court may entertain respondent's preenforcement challenge. My point is only that respondent should be permitted to make its ripeness argument and to have that argument assessed according to traditional ripeness doctrine, rather than facing statutory preclusion of review by (inevitably) failing the majority's "super-hardship" test. As I explained, supra, at 50, our cases establish a two-step analysis: (1) in light of the presumption in favor of preenforcement review, construe an ambiguous statute to allow preenforcement review; (2) apply ripeness doctrine to determine whether the suit should be entertained.
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