It’s easy to give up reading amid the minutiae of Monday’s Supreme Court decision, Azar v. Allina Health Services. The majority and dissenting opinions included extended parsing of often obtuse regulatory language. But something simpler and more fundamental hid beneath it all, something worth the effort. That something was an affirmation of the rule of law.
The Constitution charges Congress with exercising the national government’s legislative power. However, the House and Senate only produce a tiny fraction of the federal rules commanding our obedience. Instead, bureaucrats housed in government agencies churn out the vast majority of regulations affecting our lives.
This situation poses a dire problem for government limited by the consent of the governed. If we don’t like the laws Congress passes, we can vote them out every two to six years. But most bureaucrats are unelected, serving for life with limited accountability to those we do elect. Congress has tried to reintroduce a small role for consent by requiring many agencies to do two things: provide notice of rules they intend to make and allow a period for the public to comment about those rules’ consequences and their wisdom. These requirements are a far cry from truly constitutional governance. But they do provide some means for the public to affect bureaucratic lawmaking.
That’s where Azar v. Allina Health Services comes in. By congressional statute, the Department of Health and Human Services cannot make a “rule, requirement, or other statement of policy” which “establishes or changes a substantive legal standard” without following this notice and comment procedure. In 2013, HHS had changed its formula for reimbursing hospitals that treat low-income patients. This formula change will affect Medicare reimbursements to hospitals by billions of dollars over the next decade. In making the change, HHS followed the notice and comment procedure. But it tried to apply the formula to the year 2012, before having said what it would do and before accepting feedback about it.
The government defended itself by arguing that it did not need to follow notice and comment procedure here at all. It did not because the action taken didn’t change “a substantive legal standard.” The change merely advised the public on how HHS now interpreted an already existing standard.
The court sided against this defense by a 7-1 margin (Justice Stephen Breyer dissented while Justice Brett Kavanaugh took no part). In doing so, it got deep into the weeds of comparing court precedent and statutory wording. It thereby showed how the government wrongly conflated wording between different laws, rendered the Medicare law internally incoherent, and imputed intentions to the statute that Congress clearly rejected.
But the conclusion was clear and simple. HHS had to give notice and allow comment for this rule before it could be applied. Thus, it had violated the law by applying the formula retrospectively.
In so ruling, the court implicitly affirmed essential components to the rule of law: that the law must exist before bureaucrats can demand its obedience; that the law must be made known to citizens before it can be enforced; that the law rules only when it is followed as written, not as bureaucrats would like it to have been; and, finally, that lawmaking must leave some place for consent, some place for Americans to have a say in the laws that govern them.
By itself, the Supreme Court’s ruling in Azar is certainly inadequate. It did nothing to address the deeper problems of bureaucratic lawmaking. It thus did nothing direct regarding the violation of constitutional structure and of citizen consent such lawmaking entails.
But a small defense is still a defense. In the truths it implicitly affirmed rested something more. In them contained seeds for the rule of law that, if watered by future decisions, could reap a bigger and more bountiful harvest.
Adam Carrington is assistant professor of politics at Hillsdale College.
