(Slip Opinion) Cite as: 595 U. S. ____ (2022) 1
Per Curiam
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES _________________
Nos. 21A240 and 21A241 _________________
JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED STATES, ET AL., APPLICANTS 21A240 v. MISSOURI, ET AL.
XAVIER BECERRA, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., APPLICANTS 21A241 v. LOUISIANA, ET AL. ON APPLICATIONS FOR STAYS [January 13, 2022]
PER CURIAM. The Secretary of Health and Human Services adminis- ters the Medicare and Medicaid programs, which provide health insurance for millions of elderly, disabled, and low- income Americans. In November 2021, the Secretary an- nounced that, in order to receive Medicare and Medicaid funding, participating facilities must ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID–19. 86 Fed. Reg. 61555 (2021). Two District Courts enjoined enforcement of the rule, and the Government now asks us to stay those injunctions. Agreeing that it is entitled to such relief, we grant the ap- plications. 2 BIDEN v. MISSOURI
I A The Medicare program provides health insurance to indi- viduals 65 and older, as well as those with specified disabil- ities. The Medicaid program does the same for those with low incomes. Both Medicare and Medicaid are adminis- tered by the Secretary of Health and Human Services, who has general statutory authority to promulgate regulations “as may be necessary to the efficient administration of the functions with which [he] is charged.” 42 U. S. C. §1302(a). One such function—perhaps the most basic, given the De- partment’s core mission—is to ensure that the healthcare providers who care for Medicare and Medicaid patients pro- tect their patients’ health and safety. Such providers in- clude hospitals, nursing homes, ambulatory surgical cen- ters, hospices, rehabilitation facilities, and more. To that end, Congress authorized the Secretary to promulgate, as a condition of a facility’s participation in the programs, such “requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” 42 U. S. C. §1395x(e)(9) (hospitals); see, e.g., §§1395x(cc)(2)(J) (outpatient rehabilitation facilities), 1395i–3(d)(4)(B) (skilled nursing facilities), 1395k(a)(2)(F) (i) (ambulatory surgical centers); see also §§1396r(d)(4)(B), 1396d(l)(1), 1396d(o) (corresponding provisions in Medicaid Act). Relying on these authorities, the Secretary has estab- lished long lists of detailed conditions with which facilities must comply to be eligible to receive Medicare and Medicaid funds. See, e.g., 42 CFR pt. 482 (2020) (hospitals); 42 CFR pt. 483 (long-term care facilities); 42 CFR §§416.25–416.54 (ambulatory surgical centers). Such conditions have long included a requirement that certain providers maintain and enforce an “infection prevention and control program designed . . . to help prevent the development and transmis- sion of communicable diseases and infections.” §483.80 Cite as: 595 U. S. ____ (2022) 3
(long-term care facilities); see, e.g., §§482.42(a) (hospitals), 416.51(b) (ambulatory surgical centers), 485.725 (facilities that provide outpatient physical therapy and speech-lan- guage pathology services). B On November 5, 2021, the Secretary issued an interim final rule amending the existing conditions of participation in Medicare and Medicaid to add a new requirement—that facilities ensure that their covered staff are vaccinated against COVID–19. 86 Fed. Reg. 61561, 61616–61627. The rule requires providers to offer medical and religious ex- emptions, and does not cover staff who telework full-time. Id., at 61571–61572. A facility’s failure to comply may lead to monetary penalties, denial of payment for new admis- sions, and ultimately termination of participation in the programs. Id., at 61574. The Secretary issued the rule after finding that vaccina- tion of healthcare workers against COVID–19 was “neces- sary for the health and safety of individuals to whom care and services are furnished.” Id., at 61561. In many facili- ties, 35% or more of staff remain unvaccinated, id., at 61559, and those staff, the Secretary explained, pose a seri- ous threat to the health and safety of patients. That deter- mination was based on data showing that the COVID–19 virus can spread rapidly among healthcare workers and from them to patients, and that such spread is more likely when healthcare workers are unvaccinated. Id., at 61558– 61561, 61567–61568, 61585–61586. He also explained that, because Medicare and Medicaid patients are often elderly, disabled, or otherwise in poor health, transmission of COVID–19 to such patients is particularly dangerous. Id., at 61566, 61609. In addition to the threat posed by in- facility transmission itself, the Secretary also found that “fear of exposure” to the virus “from unvaccinated health care staff can lead patients to themselves forgo seeking 4 BIDEN v. MISSOURI
medically necessary care,” creating a further “ris[k] to pa- tient health and safety.” Id., at 61588. He further noted that staffing shortages caused by COVID–19-related expo- sures or illness has disrupted patient care. Id., at 61559. The Secretary issued the rule as an interim final rule, rather than through the typical notice-and-comment proce- dures, after finding “good cause” that it should be made ef- fective immediately. Id., at 61583–61586; see 5 U. S. C. §553(b)(B). That good cause was, in short, the Secretary’s belief that any “further delay” would endanger patient health and safety given the spread of the Delta variant and the upcoming winter season. 86 Fed. Reg. 61583–61586. C Shortly after the interim rule’s announcement, two groups of States—one led by Louisiana and one by Mis- souri—filed separate actions challenging the rule. The U. S. District Courts for the Western District of Louisiana and the Eastern District of Missouri each found the rule de- fective and entered preliminary injunctions against its en- forcement. Louisiana v. Becerra, 2021 WL 5609846 (Nov. 30, 2021); Missouri v. Biden, 2021 WL 5564501 (Nov. 29, 2021). In each case, the Government moved for a stay of the injunction from the relevant Court of Appeals. In Lou- isiana, the Fifth Circuit denied the Government’s motion. 20 F. 4th 260 (2021). In Missouri, the Eighth Circuit did so as well. See Order in No. 21–3725 (Dec. 13, 2021). The Government filed applications asking us to stay both Dis- trict Courts’ preliminary injunctions, and we heard expe- dited argument on its requests. II A First, we agree with the Government that the Secretary’s rule falls within the authorities that Congress has con- ferred upon him. Cite as: 595 U. S. ____ (2022) 5
Congress has authorized the Secretary to impose condi- tions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” 42 U. S. C. §1395x(e)(9).* COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid pa- tients—deadly disease. The Secretary of Health and Hu- man Services determined that a COVID–19 vaccine man- date will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients. 86 Fed. Reg. 61557–61558. He accord- ingly concluded that a vaccine mandate is “necessary to pro- mote and protect patient health and safety” in the face of the ongoing pandemic. Id., at 61613. The rule thus fits neatly within the language of the stat- ute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is con- sistent with the fundamental principle of the medical pro- fession: first, do no harm. It would be the “very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19.” Florida v. Department of Health and Human Servs., 19 F. 4th 1271, 1288 (CA11 2021). The States and JUSTICE THOMAS offer a narrower view of —————— *While this provision pertains only to hospitals, the Secretary has sim- ilar statutory powers with respect to most other categories of healthcare facilities covered by the interim rule. See supra, at 2. JUSTICE THOMAS points out that for five such kinds of facilities, the relevant statute does not contain express “health and safety” language. Post, at 3 (dissenting opinion). But employees at these facilities—which include end-stage re- nal disease clinics and home infusion therapy suppliers—represent less than 3% of the workers covered by the rule. See Tr. of Oral Arg. 25. And even with respect to them, the pertinent statutory language may be read as incorporating the “health and safety” authorities applicable to the other 97%. See, e.g., 42 U. S. C. §1396d(d)(1). We see no reason to let the infusion-clinic tail wag the hospital dog, especially because the rule has an express severability provision. 86 Fed. Reg. 61560. 6 BIDEN v. MISSOURI
the various authorities at issue, contending that the seem- ingly broad language cited above authorizes the Secretary to impose no more than a list of bureaucratic rules regard- ing the technical administration of Medicare and Medicaid. But the longstanding practice of Health and Human Ser- vices in implementing the relevant statutory authorities tells a different story. As noted above, healthcare facilities that wish to participate in Medicare and Medicaid have al- ways been obligated to satisfy a host of conditions that ad- dress the safe and effective provision of healthcare, not simply sound accounting. Such requirements govern in de- tail, for instance, the amount of time after admission or sur- gery within which a hospital patient must be examined and by whom, 42 CFR §482.22(c)(5), the procurement, transpor- tation, and transplantation of human kidneys, livers, hearts, lungs, and pancreases, §482.45, the tasks that may be delegated by a physician to a physician assistant or nurse practitioner, §483.30(e), and, most pertinent here, the programs that hospitals must implement to govern the “surveillance, prevention, and control of . . . infectious dis- eases,” §482.42. Moreover, the Secretary routinely imposes conditions of participation that relate to the qualifications and duties of healthcare workers themselves. See, e.g., §§482.42(c) (2)(iv) (requiring training of “hospital personnel and staff ” on “infection prevention and control guidelines”), 483.60(a)(1)(ii) (qualified dieticians must have completed at least 900 hours of supervised practice), 482.26(b)–(c) (spec- ifying personnel authorized to use radiologic equipment). And the Secretary has always justified these sorts of re- quirements by citing his authorities to protect patient health and safety. See, e.g., §§482.1(a)(1)(ii), 483.1(a)(1)(ii), 416.1(a)(1). As these examples illustrate, the Secretary’s role in administering Medicare and Medicaid goes far be- yond that of a mere bookkeeper. Indeed, respondents do not contest the validity of this Cite as: 595 U. S. ____ (2022) 7
longstanding litany of health-related participation condi- tions. When asked at oral argument whether the Secretary could, using the very same statutory authorities at issue here, require hospital employees to wear gloves, sterilize in- struments, wash their hands in a certain way and at certain intervals, and the like, Missouri answered yes: “[T]he Sec- retary certainly has authority to implement all kinds of in- fection control measures at these facilities.” Tr. of Oral Arg. 57–58. Of course the vaccine mandate goes further than what the Secretary has done in the past to implement in- fection control. But he has never had to address an infec- tion problem of this scale and scope before. In any event, there can be no doubt that addressing infection problems in Medicare and Medicaid facilities is what he does. And his response is not a surprising one. Vaccination re- quirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for dis- eases such as hepatitis B, influenza, and measles, mumps, and rubella. CDC, State Healthcare Worker and Patient Vaccination Laws (Feb. 28, 2018), https://www.cdc.gov/ phlp/publications/topic/vaccinationlaws.html. As the Sec- retary explained, these pre-existing state requirements are a major reason the agency has not previously adopted vac- cine mandates as a condition of participation. 86 Fed. Reg. 61567–61568. All this is perhaps why healthcare workers and public- health organizations overwhelmingly support the Secre- tary’s rule. See id., at 61565–61566; see also Brief for American Medical Assn. et al. as Amici Curiae; Brief for American Public Health Assn. et al. as Amici Curiae; Brief for Secretaries of Health and Human Services et al. as Amici Curiae. Indeed, their support suggests that a vac- cination requirement under these circumstances is a straightforward and predictable example of the “health and 8 BIDEN v. MISSOURI
safety” regulations that Congress has authorized the Secre- tary to impose. We accordingly conclude that the Secretary did not ex- ceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the fa- cilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19. B We also disagree with respondents’ remaining conten- tions in support of the injunctions entered below. First, the interim rule is not arbitrary and capricious. Given the rule- making record, it cannot be maintained that the Secretary failed to “examine the relevant data and articulate a satis- factory explanation for” his decisions to (1) impose the vac- cine mandate instead of a testing mandate; (2) require vac- cination of employees with “natural immunity” from prior COVID–19 illness; and (3) depart from the agency’s prior approach of merely encouraging vaccination. Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Auto- mobile Ins. Co., 463 U. S. 29, 43 (1983); see 86 Fed. Reg. 61583, 61559–61561, 61614. Nor is it the case that the Sec- retary “entirely failed to consider” that the rule might cause staffing shortages, including in rural areas. State Farm, 463 U. S., at 43; see 86 Fed. Reg. 61566, 61569, 61607– 61609. As to the additional flaws the District Courts found in the Secretary’s analysis, particularly concerning the na- ture of the data relied upon, the role of courts in reviewing arbitrary and capricious challenges is to “simply ensur[e] that the agency has acted within a zone of reasonableness.” FCC v. Prometheus Radio Project, 592 U. S. ___, ___ (2021) (slip op., at 12). Other statutory objections to the rule fare no better. First, JUSTICE ALITO takes issue with the Secretary’s find- ing of good cause to delay notice and comment. But the Sec- retary’s finding that accelerated promulgation of the rule in Cite as: 595 U. S. ____ (2022) 9
advance of the winter flu season would significantly reduce COVID–19 infections, hospitalizations, and deaths, 86 Fed. Reg. 61584–61586, constitutes the “something specific,” post, at 3 (dissenting opinion), required to forgo notice and comment. And we cannot say that in this instance the two months the agency took to prepare a 73-page rule consti- tutes “delay” inconsistent with the Secretary’s finding of good cause. Second, we agree with the Secretary that he was not required to “consult with appropriate State agen- cies,” 42 U. S. C. §1395z, in advance of issuing the interim rule. Consistent with the existence of the good cause excep- tion, which was properly invoked here, consultation during the deferred notice-and-comment period is permissible. We similarly concur with the Secretary that he need not pre- pare a regulatory impact analysis discussing a rule’s effect on small rural hospitals when he acts through an interim final rule; that requirement applies only where the Secre- tary proceeds on the basis of a “notice of proposed rulemak- ing,” §1302(b)(1), followed by a “final version of [the] rule,” §1302(b)(2). Lastly, the rule does not run afoul of the di- rective in §1395 that federal officials may not “exercise any supervision or control over the . . . manner in which medical services are provided, or over the selection [or] tenure . . . of any officer or employee of ” any facility. That reading of sec- tion 1395 would mean that nearly every condition of partic- ipation the Secretary has long insisted upon is unlawful. * * * The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not con- ferred upon it. At the same time, such unprecedented cir- cumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have. Because the latter principle governs in these cases, the ap- plications for a stay presented to JUSTICE ALITO and JUSTICE KAVANAUGH and by them referred to the Court are 10 BIDEN v. MISSOURI
granted. The District Court for the Eastern District of Missouri’s November 29, 2021, order granting a preliminary injunc- tion is stayed pending disposition of the Government’s ap- peal in the United States Court of Appeals for the Eighth Circuit and the disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court. The District Court for the Western District of Louisiana’s November 30, 2021, order granting a preliminary injunc- tion is stayed pending disposition of the Government’s ap- peal in the United States Court of Appeals for the Fifth Cir- cuit and the disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.
It is so ordered. Cite as: 595 U. S. ____ (2022) 1
THOMAS, J., dissenting
JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED STATES, ET AL., APPLICANTS 21A240 v. MISSOURI, ET AL.
XAVIER BECERRA, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., APPLICANTS 21A241 v. LOUISIANA, ET AL. ON APPLICATIONS FOR STAYS [January 13, 2022]
JUSTICE THOMAS, with whom JUSTICE ALITO, JUSTICE GORSUCH, and JUSTICE BARRETT join, dissenting. Two months ago, the Department of Health and Human Services (HHS), acting through the Centers for Medicare and Medicaid Services (CMS), issued an omnibus rule man- dating that medical facilities nationwide order their em- ployees, volunteers, contractors, and other workers to re- ceive a COVID–19 vaccine. Covered employers must fire noncompliant workers or risk fines and termination of their Medicare and Medicaid provider agreements. As a result, the Government has effectively mandated vaccination for 10 million healthcare workers. Two District Courts preliminarily enjoined enforcement of the omnibus rule, and the Government now requests an emergency stay of those injunctions pending appeal. Be- cause the Government has not made a strong showing that it has statutory authority to issue the rule, I too would deny a stay. 2 BIDEN v. MISSOURI
To obtain a stay, the Government must show that there is (1) a reasonable probability that we would grant certio- rari; (2) a fair prospect that we would reverse the judgments below; and (3) a likelihood that irreparable harm will result from denying a stay. Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam). Because there is no real dispute that this case merits our review, our decision turns primar- ily on whether the Government can make a “strong show- ing” that it is likely to succeed on the merits. Nken v. Holder, 556 U. S. 418, 426 (2009). In my view, the Govern- ment has not made such a showing here. The Government begins by invoking two statutory provi- sions that generally grant CMS authority to promulgate rules to implement Medicare and Medicaid. The first au- thorizes CMS to “publish such rules and regulations . . . as may be necessary to the efficient administration of the [agency’s] functions.” 42 U. S. C. §1302(a). The second au- thorizes CMS to “prescribe such regulations as may be nec- essary to carry out the administration of the insurance pro- grams” under the Medicare Act. §1395hh(a)(1). The Government has not established that either provi- sion empowers it to impose a vaccine mandate. Rules car- rying out the “administration” of Medicare and Medicaid are those that serve “the practical management and direc- tion” of those programs. Black’s Law Dictionary 58 (3d ed. 1933). Such rules are “necessary” to “administration” if they bear “an actual and discernible nexus” to the pro- grams’ practical management. Merck & Co., Inc. v. United States Dept. of Health and Human Servs., 962 F. 3d 531, 537–538 (CADC 2020) (internal quotation marks omitted). Here, the omnibus rule compels millions of healthcare workers to undergo an unwanted medical procedure that “cannot be removed at the end of the shift,” In re MCP No. 165, 20 F. 4th 264, 268 (CA6 2021) (Sutton, C. J., dissenting from denial of initial hearing en banc). To the extent the rule has any connection to the management of Medicare Cite as: 595 U. S. ____ (2022) 3
and Medicaid, it is at most a “tangential” one. Merck & Co., Inc., 962 F. 3d, at 538. At oral argument, the Government largely conceded that §1302(a) and §1395hh(a)(1) alone do not authorize the om- nibus rule. See Tr. of Oral Arg. 7, 10. Instead, it fell back on a constellation of statutory provisions that each concern one of the 15 types of medical facilities that the rule covers. See 86 Fed. Reg. 61567 (2021). Several of those provisions contain language indicating that CMS may regulate those facilities in the interest of “health and safety.” In the Gov- ernment’s view, that language authorizes CMS to adopt any “requirements that [CMS] deems necessary to ensure pa- tient health and safety,” including a vaccine mandate ap- plicable to all facility types. Application in No. 21A240, p. 19. The majority, too, treats these scattered provisions as a singular (and unqualified) delegation to the Secretary to adopt health and safety regulations. The Government has not made a strong showing that this agglomeration of statutes authorizes any such rule. To start, 5 of the 15 facility-specific statutes do not authorize CMS to impose “health and safety” regulations at all. See 42 U. S. C. §§1396d(d)(1), (h)(1)(B)(i), 1395rr(b)(1)(A), 1395x(iii)(3)(D)(i)(IV), 1395i–4(e). These provisions cannot support an argument based on statutory text they lack. Perhaps that is why the Government only weakly defends them as a basis for its authority. See Tr. of Oral Arg. 25– 28. Next, the Government identifies eight definitional provi- sions describing, for example, what makes a hospital a “hos- pital.” These define covered facilities as those that comply with a variety of conditions, including “such other require- ments as the Secretary finds necessary in the interest of . . . health and safety.” §1395x(e)(9); see also §§1395x(dd)(2)(G), (o)(6), (ff )(3)(B)(iv), (cc)(2)(J), (p)(4)(A)(v), (aa)(2)(K), 1395k(a)(2)(F)(i). The Government similarly invokes a saving clause for “health and safety” 4 BIDEN v. MISSOURI
regulations applicable to “all-inclusive care” programs for the elderly, see §§1395eee(f )(4), 1396u–4(f )(4), and a re- quirement that long-term nursing facilities “establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment . . . to help prevent the development and transmission of disease,” §1395i–3(d)(3). The Government has not made a strong showing that this hodgepodge of provisions authorizes a nationwide vaccine mandate. We presume that Congress does not hide “funda- mental details of a regulatory scheme in vague or ancillary provisions.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). Yet here, the Government pro- poses to find virtually unlimited vaccination power, over millions of healthcare workers, in definitional provisions, a saving clause, and a provision regarding long-term care facilities’ sanitation procedures. The Government has not explained why Congress would have used these ancillary provisions to house what can only be characterized as a “fundamental detail” of the statutory scheme. Had Con- gress wanted to grant CMS power to impose a vaccine man- date across all facility types, it would have done what it has done elsewhere—specifically authorize one. See 22 U. S. C. §2504(e) (authorizing mandate for “such immunization . . . as necessary and appropriate” for Peace Corps volunteers). Nonetheless, even if I were to accept that Congress could have hidden vaccine-mandate power in statutory defini- tions, the language in these “health and safety” provisions does not suggest that Congress did so. Take, for example, 42 U. S. C. §1395x(e), which defines “hospital” for certain purposes. Three subsections define hospitals as providers of specific patient services, see §§1395x(e)(1), (4), (5), and five describe administrative requirements that a facility must meet to qualify as a covered hospital, see §§1395x(e)(2)–(3), (6)–(8). The final subsection then pro- Cite as: 595 U. S. ____ (2022) 5
vides that a “hospital” must also “mee[t] such other require- ments as the Secretary finds necessary in the interest of the health and safety of individuals who are furnished ser- vices.” §1395x(e)(9) (emphasis added). Contrary to the Government’s position, this kind of catchall provision does not authorize every regulation re- lated to “health and safety.” As with all statutory language, context must inform the scope of the provision. See AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366, 408 (1999) (THOMAS, J., concurring in part and dissenting in part) (cit- ing Neal v. Clark, 95 U. S. 704, 708 (1878)). “[W]here, as here, a more general term follows more specific terms in a list, the general term is usually understood to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Epic Systems Corp. v. Lewis, 584 U. S. ___, ___ (2018) (slip op., at 12) (internal quotation marks omitted). That presumption is particularly forceful where the statutory catchall refers to “such other” require- ments, signaling that the subjects that come before delimit any residual authority. See ibid. Here, in §1395x(e), none of the myriad subsections preceding the “health and safety” subsection suggests that the Government can order hospi- tals to require virtually all hospital personnel to be vac- cinated. Rather, these subsections show that HHS’ residual authority embraces only administrative requirements like those that precede it—including “provid[ing] 24-hour nurs- ing service,” “maintain[ing] clinical records on all patients,” or having “bylaws in effect.” §§1395x(e)(2), (3), (5). A re- quirement that all healthcare workers be vaccinated is plainly different in kind. The same reasoning applies to al- most all of the Government’s proposed facility-specific stat- utes. See §§1395x(aa)(2), (dd)(2), (o)(6); see also §§1395x(ff )(3)(B), (p)(4)(A), (cc)(2), 1395eee, 1396u–4(f )(4). Only one facility-specific provision is arguably different. It regulates long-term care facilities and mandates an “infection control program” among its “health and safety” 6 BIDEN v. MISSOURI
provisions. §1395i–3(d)(3). But that infection-control pro- vision focuses on sanitizing the facilities’ “environment,” not its personnel. Ibid. In any event, even if this statutory language justified a vaccine mandate in long-term care fa- cilities, it could not sustain the omnibus rule. Neither the “infection control” language nor a reasonable analog ap- pears in any of the other facility-specific provisions. Basic interpretive principles would thus suggest that CMS lacks vaccine-mandating authority with respect to the other types of facilities. See Russello v. United States, 464 U. S. 16, 23 (1983). And, of course, the omnibus rule cannot rest on the long-term care provision alone. By CMS’ own estimate, long-term care facilities employ only 10% of the 10 million healthcare workers that the rule covers. 86 Fed. Reg. 61603. Put simply, the oblique reference to “infection control” in the definitional provision for long-term care fa- cilities cannot authorize an omnibus vaccine mandate cov- ering every type of facility that falls within CMS’ purview. For its part, the Court does not rely on the Government’s proffered statutory provisions. Instead, it asserts that CMS possesses broad vaccine-mandating authority by pointing to a handful of CMS regulations. To begin, the Court does not explain why the bare existence of these regulations is evidence of what Congress empowered the agency to do. Re- lying on them appears to put the cart before the horse. Regardless, these regulations provide scant support for the sweeping power the Government now claims. For ex- ample, CMS regulations that mandate the number of hours a dietician must practice under supervision, ante, at 6 (cit- ing 42 CFR §483.60 (2020)), or that prescribe “the tasks that may be delegated . . . to a physician assistant or nurse practitioner,” ante, at 6 (citing §483.30(e)), cannot support a vaccine mandate for healthcare personnel. The Court also invokes a regulation requiring hospitals to implement programs that “govern the ‘surveillance, pre- vention, and control of . . . infectious diseases,’ ” ante, at 6 Cite as: 595 U. S. ____ (2022) 7
(quoting §482.42), as well as a few regulations that require “infection and prevention control programs” at some (but apparently not all) facility types. See ante, at 3 (citing, inter alia, §482.42). But many of these infection-control regula- tions, like the infection-control program set out at 42 U. S. C. §1395i–3(d)(3), are far afield from immunization. See, e.g., 42 CFR §§485.725(b)–(e) (specifying requirements for “aseptic techniques,” “housekeeping services,” “[l]inens,” and “[p]est control”). And insofar as they do touch on im- munization, they require only that facilities offer their res- idents the opportunity to obtain a vaccine, along with “the opportunity to refuse” it. §483.80(d)(1). These regulations are not precedents for CMS’ newfound authority mandating that all employees be vaccinated. Finally, our precedents confirm that the Government has failed to make a strong showing on the merits. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Hu- man Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted). And we expect Congress to use “exceedingly clear language if it wishes to significantly alter the balance between state and federal power.” Ibid. (internal quotation marks omitted). The om- nibus rule is undoubtedly significant—it requires millions of healthcare workers to choose between losing their liveli- hoods and acquiescing to a vaccine they have rejected for months. Vaccine mandates also fall squarely within a State’s police power, see Zucht v. King, 260 U. S. 174, 176 (1922), and, until now, only rarely have been a tool of the Federal Government. If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not. 8 BIDEN v. MISSOURI
* * * These cases are not about the efficacy or importance of COVID–19 vaccines. They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo. Because the Govern- ment has not made a strong showing that Congress gave CMS that broad authority, I would deny the stays pending appeal. I respectfully dissent. Cite as: 595 U. S. ____ (2022) 1
ALITO, J., dissenting
JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED STATES, ET AL., APPLICANTS 21A240 v. MISSOURI, ET AL.
XAVIER BECERRA, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., APPLICANTS 21A241 v. LOUISIANA, ET AL. ON APPLICATIONS FOR STAYS [January 13, 2022]
JUSTICE ALITO, with whom JUSTICE THOMAS, JUSTICE GORSUCH, and JUSTICE BARRETT join, dissenting. I join JUSTICE THOMAS’s dissent because I do not think that the Federal Government is likely to be able to show that Congress has authorized the unprecedented step of compelling over 10,000,000 healthcare workers to be vac- cinated on pain of being fired. The support for the argu- ment that the Federal Government possesses such author- ity is so obscure that the main argument now pressed by the Government—that the authority is conferred by a hodgepodge of scattered provisions—was not prominently set out by the Government until its reply brief in this Court. Before concluding that the Federal Government possesses this authority, we should demand stronger statutory proof than has been mustered to date. But even if the Federal Government has the authority to require the vaccination of healthcare workers, it did not have the authority to impose that requirement in the way 2 BIDEN v. MISSOURI
it did. Under our Constitution, the authority to make laws that impose obligations on the American people is conferred on Congress, whose Members are elected by the people. Elected representatives solicit the views of their constitu- ents, listen to their complaints and requests, and make a great effort to accommodate their concerns. Today, how- ever, most federal law is not made by Congress. It comes in the form of rules issued by unelected administrators. In or- der to give individuals and entities who may be seriously impacted by agency rules at least some opportunity to make their views heard and to have them given serious consider- ation, Congress has clearly required that agencies comply with basic procedural safeguards. Except in rare cases, an agency must provide public notice of proposed rules, 5 U. S. C. §553(b); the public must be given the opportunity to comment on those proposals, §553(c); and if the agency issues the rule, it must address concerns raised during the notice-and-comment process. United States v. Nova Scotia Food Products Corp., 568 F. 2d 240, 252 (CA2 1977); see also Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983). The rule may then be challenged in court, and the court may declare the rule unlawful if these procedures have not been followed. In these cases, the relevant agency did none of those things, and the Court rewards this extraordinary departure from ordinary principles of administrative procedure. Alt- hough today’s ruling means only that the Federal Govern- ment is likely to be able to show that this departure is law- ful, not that it actually is so, this ruling has an importance that extends beyond the confines of these cases. It may have a lasting effect on Executive Branch behavior. Because of the importance of notice-and-comment rule- making, an agency must show “good cause” if it wishes to skip that process. 5 U. S. C. §553(b)(3)(B). Although this Court has never precisely defined what an agency must do Cite as: 595 U. S. ____ (2022) 3
to demonstrate good cause, federal courts have consistently held that exceptions to notice-and-comment must be “ ‘nar- rowly construed and only reluctantly countenanced.’ ” Mack Trucks, Inc. v. EPA, 682 F. 3d 87, 93 (CADC 2012) (quoting Utility Solid Waste Activities Group v. EPA, 236 F. 3d 749, 754 (CADC 2001)); see also C. Koch & R. Murphy, Good Cause for Avoiding Procedures, 1 Admin. L. & Prac. §4:13 (3d ed. 2021). The agency that issued the mandate at issue here, i.e., the Centers for Medicare and Medicaid Services (CMS), ad- mits it did not comply with the commonsense measure of seeking public input before placing binding rules on mil- lions of people, but it claims that “[t]he data showing the vital importance of vaccination” indicate that it “cannot de- lay taking this action.” 86 Fed. Reg. 61555, 61583 (2021). But CMS’s generalized justification cannot alone establish good cause to dispense with Congress’s clear procedural safeguards. An agency seeking to show good cause must “point to something specific that illustrates a particular harm that will be caused by the delay required for notice and comment.” United States v. Brewer, 766 F. 3d 884, 890 (CA8 2014) (internal quotation marks omitted). Although CMS argues that an emergency justifies swift action, both District Courts below held that CMS fatally un- dercut that justification with its own repeated delays. The vaccines that CMS now claims are vital had been widely available 10 months before CMS’s mandate, and millions of healthcare workers had already been vaccinated before the agency took action. President Biden announced the CMS mandate on September 9, 2021, nearly two months before the agency released the rule on November 5, and the man- date itself delayed the compliance deadline further by an- other month until December 6. 86 Fed. Reg. 61555; id., at 61573 (making implementation of the vaccine mandate begin “30 days after publication” and completed “60 days after publication”). This is hardly swift. 4 BIDEN v. MISSOURI
CMS argues that its delay, “even if true,” does not provide a “reason to block a rule” that it claims will protect patient health. Application in No. 21A241, p. 36. It claims that its departure from ordinary procedure after extraordinary de- lay should be excused because nobody can show they were prejudiced by the lack of a comment period before the rule took effect. But it is CMS’s affirmative burden to show it has good cause, not respondents’ burden to prove the nega- tive. Northern Arapahoe Tribe v. Hodel, 808 F. 2d 741, 751 (CA10 1987). Congress placed procedural safeguards on ex- ecutive rulemaking so agencies would consider “important aspect[s] of the problem[s]” they seek to address before re- stricting the liberty of the people they regulate. State Farm, 463 U. S., at 43. Because CMS chose to circumvent notice-and-comment, States that run Medicaid facilities, as well as other regulated parties, had no opportunity to pre- sent evidence refuting or contradicting CMS’s justifications before the rule bound them. And because CMS acknowl- edged its own “uncertainty” and the “rapidly changing na- ture of the current pandemic,” 86 Fed. Reg. 61589, it should have been more receptive to feedback, not less. “[A]n utter failure to comply with notice and comment cannot be con- sidered harmless if there is any uncertainty at all as to the effect of that failure.” Sugar Cane Growers Cooperative of Florida v. Veneman, 289 F. 3d 89, 96 (CADC 2002). Today’s decision will ripple through administrative agen- cies’ future decisionmaking. The Executive Branch already touches nearly every aspect of Americans’ lives. In conclud- ing that CMS had good cause to avoid notice-and-comment rulemaking, the Court shifts the presumption against com- pliance with procedural strictures from the unelected agency to the people they regulate. Neither CMS nor the Court articulates a limiting principle for why, after an un- explained and unjustified delay, an agency can regulate first and listen later, and then put more than 10 million Cite as: 595 U. S. ____ (2022) 5
healthcare workers to the choice of their jobs or an irre- versible medical treatment. Therefore, I respectfully dissent.