Biden v. Missouri

P R E L I M I N A R Y P R I N T
Volume 595 U. S. Part 1
Pages 87–108
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
January 13, 2022
REBECCA A. WOMELDORF
reporter of decisions
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N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

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OCTOBER
TERM, 2021
87
Syllabus
BIDEN, PRESIDENT OF THE UNITED STATES,
et
al. v. MISSOURI et al.
on applications for stay
No. 21A240. Argued January 7, 2022—Decided January 13, 2022*
On November 5, 2021, the Secretary of Health and Human Services issued
an interim fnal rule requiring that many healthcare facilities, in order
to remain eligible for Medicare and Medicaid funding, ensure that non-
exempt staff are vaccinated against COVID–19. The Secretary found
that the measure was “necessary for the health and safety of individuals
to whom care and services are furnished.” 86 Fed. Reg. 61561.
Shortly after the rule's announcement, two groups of States fled sepa-
rate actions challenging the rule. In each case, the District Court
found the rule defective and entered a preliminary injunction against
its enforcement. The Government moved to stay the injunctions, but
the Fifth and Eighth Circuits denied the motions. The Government
then fled applications for stays with this Court.
Held: The Secretary did not exceed his statutory authority in promulgat-
ing the interim rule. The vaccination requirement fts neatly within
the language of the statutes authorizing him to impose conditions on the
receipt of Medicaid and Medicare funds that he “fnds necessary in the
interest of the health and safety of individuals who are furnished serv-
ices.” 42 U. S. C. § 1395x(e)(9). Ensuring that providers do not trans-
mit COVID–19 to their patients is consistent with the fundamental prin-
ciple of the medical profession: frst, do no harm. And the longstanding
practice of HHS in implementing the relevant statutes demonstrates
that the Secretary's authority extends beyond imposing a list of bureau-
cratic rules regarding technical administration. Participating health-
care facilities have always been obligated to satisfy a host of conditions
that address the safe and effective provision of healthcare, see, e. g., 42
CFR § 482.42, including conditions that relate to the qualifcations and
duties of healthcare workers themselves, see, e. g., § 483.60(a)(1)(ii). In-
deed, respondents concede that the Secretary may implement all kinds
of infection control measures at covered facilities. Of course the vac-
cine mandate goes further than what the Secretary has required before.
But he has never had to address a problem of this scale and scope, and
vaccination requirements are a commonly used infection control tool.
*Together with No. 21A241, Becerra, Secretary of Health and Human
Services, et al. v. Louisiana et al., also on application for stay.

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88 BIDEN
v. MISSOURI
Syllabus
Indeed, the overwhelming support for the rule by healthcare workers
and
organizations suggests that such a requirement under the circum-
stances is a straightforward and predictable example of the sort of
“health and safety” regulation the Secretary is authorized to impose.
Respondents' remaining contentions in support of the injunctions—that
the interim rule is arbitrary and capricious, that the Secretary lacked
good cause to delay notice and comment, that the Secretary was re-
quired to “consult with appropriate State agencies,” 42 U. S. C. § 1395z,
before issuing the interim rule, and that the rule runs afoul of § 1395's
limitations on certain actions by federal offcials—are rejected.
Applications for stay granted.
Principal Deputy Solicitor General Fletcher argued the
cause for applicants in both cases.
Jesus A. Osete, Deputy Attorney General of Missouri, ar-
gued the cause for respondents in No. 21A240.
Elizabeth Murrill, Solicitor General of Louisiana, argued
the cause for respondents in No. 21A241.†
†Briefs of amici curiae urging the denial of the emergency applications
for stay of the Occupational Safety and Health Administration's emergency
temporary standard in both cases were fled for the State of Louisiana
et al. by Jeff Landry, Attorney Geneeral of Louisiana, Elizabeth B. Mur-
rill, Solicitor General, J. Scott St. John, Deputy Solicitor General, and
Morgan Brungard and Josiah Kollmeyer, Assistant Solicitors General, by
Mark Brnovich, Attorney General of Arizona, Joseph A. Kanefeld, Brunn
“Beau” W. Roysden III, Solicitor General, Drew C. Ensign, Deputy Solic-
itor General, and Wilson C. Freeman, by Austin Knudsen, Attorney Gen-
eral of Montana, Kristin Hansen, David M. S. Dewhirst, Solicitor General,
and Kathleen L. Smithgall, Assistant Attorney General, and by the Attor-
neys General and other offcials for their respective States as follows:
Steve Marshall of Alabama, Christopher M. Carr of Georgia, Lawrence
G. Wasden of Idaho, Theodore E. Rokita of Indiana, Daniel Cameron of
Kentucky, Lynn Fitch of Mississippi, Dave Yost of Ohio, John M. O'Connor
of Oklahoma, Alan Wilson of South Carolina, Sean D. Reyes of Utah, and
Patrick Morrisey of West Virginia; and for Reliant Care Management Co.,
L.L.C., by Michael T. Raupp, Harvey M. Tettlebaum, and David A. Lopez.
Briefs of amici curiae urging the denial of the emergency applications
for stay of the Occupational Safety and Health Administration's emergency
temporary standard in No. 21A240 were fled for the State of Missouri
et al. by Eric S. Schmitt, Attorney General of Missouri, D. John Sauer,

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Cite
as: 595 U. S. 87 (2022)
89
Per Curiam
Per Curiam.
The
Secretary of Health and Human Services administers
the Medicare and Medicaid programs, which provide health
insurance for millions of elderly, disabled, and low-income
Americans. In November 2021, the Secretary announced
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 Dis-
trict Courts enjoined enforcement of the rule, and the
Government now asks us to stay those injunctions. Agree-
ing that it is entitled to such relief, we grant the applications.
Solicitor General, Jesus A. Osete, Deputy Attorney General, and Maddie
McMillian Green, Assistant Attorney General, by Douglas J. Peterson,
Attorney General of Nebraska, and James A. Campbell, Solicitor General,
and by the Attorneys General and other offcials for their respective States
as follows: Treg R. Taylor of Alaska and Cori M. Mills, Deputy Attorney
General, Leslie Rutledge of Arkansas and Dylan L. Jacobs, Assistant So-
licitor General, Jeffrey S. Thompson, Solicitor General of Iowa, and Sam-
uel P. Langholz, Assistant Solicitor General, Derek Schmidt of Kansas
and Kurtis Wiard, Assistant Solicitor General, John M. Formella of New
Hampshire and Anthony J. Galdieri, Solicitor General, Wayne Steneh jem
of North Dakota and Matthew A. Sagsveen, Solicitor General, Jason R.
Ravnsborg of South Dakota and David M. McVey, Assistant Attorney
General, and Bridget Hill of Wyoming and Ryan Schelhass, Chief Deputy
Attorney General; for Baptist Homes & Healthcare Ministries et al. by
Jonathan R. Whitehead and Michael K. Whitehead; and for Doctors for
Disaster Preparedness et al. by Andrew L. Schlafy.
Briefs of amici curiae urging the grant of the emergency applications
for stay of the Occupational Safety and Health Administration's emergency
temporary standard in both cases were fled for the American Medical
Association et al. by Jessica Anne Morton, Rachel L. Fried, JoAnn Kintz,
and Sean A. Lev; for the American Public Health Association et al. by
Deepak Gupta; for Former Secretaries of Health and Human Services
et al. by Andrew J. Pincus; and for the Service Employees International
Union et al. by Barbara J. Chisholm, Jonathan Rosenthal, Nicole G.
Berner, Claire Prestel, Renee M. Gerni, David J. Strom, Judith E. Rivlin,
and Teague P. Paterson.

90 BIDEN
v. MISSOURI
Per Curiam
I
A
The
Medicare program provides health insurance to indi-
viduals 65 and older, as well as those with specifed disabili-
ties. The Medicaid program does the same for those with
low incomes. Both Medicare and Medicaid are administered
by the Secretary of Health and Human Services, who has
general statutory authority to promulgate regulations “as
may be necessary to the effcient administration of the func-
tions 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 centers,
hospices, rehabilitation facilities, and more. To that end,
Congress authorized the Secretary to promulgate, as a condi-
tion of a facility's participation in the programs, such “re-
quirements as [he] fnds 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 established
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 (ambula-
tory 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 transmission of commu-
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Cite
as: 595 U. S. 87 (2022)
91
Per Curiam
nicable diseases and infections.” § 483.80 (long-term care
faci
lities); see, e. g., §§ 482.42(a) (hospitals), 416.51(b) (ambula-
tory surgical centers), 485.725 (facilities that provide out-
patient physical therapy and speech-language pathology
services).
B
On November 5, 2021, the Secretary issued an interim fnal
rule amending the existing conditions of participation in
Medicare and Medicaid to add a new requirement—that facil-
ities ensure that their covered staff are vaccinated against
COVID–19. 86 Fed. Reg. 61561, 61616–61627. The rule re-
quires providers to offer medical and religious exemptions,
and does not cover staff who telework full-time. Id., at
61571–61572. A facility's failure to comply may lead to mon-
etary penalties, denial of payment for new admissions, and
ultimately termination of participation in the programs.
Id., at 61574.
The Secretary issued the rule after fnding 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 serious
threat to the health and safety of patients. That determina-
tion 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 health-
care workers are unvaccinated. Id., at 61558–61561, 61567–
61568, 61585–61586. He also explained that, because Medi-
care 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 medically necessary care,” creating
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92 BIDEN
v. MISSOURI
Per Curiam
a further “ris[k] to patient health and safety.” Id., at 61558.
H
e further noted that staffng shortages caused by COVID–
19-related exposures or illness has disrupted patient care.
Id., at 61559.
The Secretary issued the rule as an interim fnal rule,
rather than through the typical notice-and-comment proce-
dures, after fnding “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 Missouri—fled
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 defective and en-
tered preliminary injunctions against its enforcement. Lou-
isiana v. Becerra, 571 F. Supp. 3d 516 (2021); Missouri v.
Biden, 571 F. Supp. 3d 1079 (2021). In each case, the Gov-
ernment moved for a stay of the injunction from the relevant
Court of Appeals. In Louisiana, the Fifth Circuit denied
the Government's motion. 20 F. 4th 260 (2021). In Mis-
souri, the Eighth Circuit did so as well. See Order in No.
21–3725 (Dec. 13, 2021). The Government fled applications
asking us to stay both District Courts' preliminary injunc-
tions, and we heard expedited argument on its requests.
II
A
First, we agree with the Government that the Secretary's
rule falls within the authorities that Congress has conferred
upon him.

Cite
as: 595 U. S. 87 (2022)
93
Per Curiam
Congress has authorized the Secretary to impose condi-
ti
ons on the receipt of Medicaid and Medicare funds that
“the Secretary fnds 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
patients—deadly disease. The Secretary of Health and
Human 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 pa-
tients. 86 Fed. Reg. 61557–61558. He accordingly con-
cluded that a vaccine mandate is “necessary to promote and
protect patient health and safety” in the face of the ongoing
pandemic. Id., at 61613.
The rule thus fts 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 consistent
with the fundamental principle of the medical profession:
frst, do no harm. It would be the “very opposite of effcient
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).
*While this provision pertains only to hospitals, the Secretary has simi-
lar statutory powers with respect to most other categories of healthcare
facilities covered by the interim rule. See supra, at 90. Justice
Thomas points out that for fve such kinds of facilities, the relevant statute
does not contain express “health and safety” language. Post, at 100 (dis-
senting opinion). But employees at these facilities—which include end-
stage renal 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.
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94 BIDEN
v. MISSOURI
Per Curiam
The States and Justice Thomas offer a narrower view of
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 regarding
the technical administration of Medicare and Medicaid. But
the longstanding practice of Health and Human Services in
implementing the relevant statutory authorities tells a dif-
ferent story. As noted above, healthcare facilities that wish
to participate in Medicare and Medicaid have always been
obligated to satisfy a host of conditions that address the safe
and effective provision of healthcare, not simply sound ac-
counting. Such requirements govern in detail, for instance,
the amount of time after admission or surgery within which
a hospital patient must be examined and by whom, 42 CFR
§ 482.22(c)(5), the procurement, transportation, and trans-
plantation of human kidneys, livers, hearts, lungs, and pan-
creases, § 482.45, the tasks that may be delegated by a physi-
cian 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 con-
trol of . . . infectious diseases,” § 482.42.
Moreover, the Secretary routinely imposes conditions of
participation that relate to the qualifcations and duties of
healthcare workers themselves. See, e. g., §§ 482.42(c)(2)(iv)
(requiring training of “hospital personnel and staff ” on “in-
fection prevention and control guidelines”), 483.60(a)(1)(ii)
(qualifed dieticians must have completed at least 900 hours
of supervised practice), 482.26(b)–(c) (specifying personnel
authorized to use radiologic equipment). And the Secretary
has always justifed these sorts of requirements 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 exam-
ples illustrate, the Secretary's role in administering Medicare
and Medicaid goes far beyond that of a mere bookkeeper.
Indeed, respondents do not contest the validity of this
longstanding litany of health-related participation conditions.
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Cite
as: 595 U. S. 87 (2022)
95
Per Curiam
When asked at oral argument whether the Secretary could,
usi
ng the very same statutory authorities at issue here, re-
quire hospital employees to wear gloves, sterilize instru-
ments, wash their hands in a certain way and at certain in-
tervals, and the like, Missouri answered yes: “[T]he
Secretary certainly has authority to implement all kind of
infection 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
infection 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 health-
care in America: Healthcare workers around the country are
ordinarily required to be vaccinated for diseases such as hep-
atitis B, infuenza, 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 Secretary explained, these
pre-existing state requirements are a major reason the
agency has not previously adopted vaccine 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 Secretary'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 Former
Secretaries of Health and Human Services et al. as Amici
Curiae. Indeed, their support suggests that a vaccination
requirement under these circumstances is a straightforward
and predictable example of the “health and safety” regula-
tions that Congress has authorized the Secretary to impose.
We accordingly conclude that the Secretary did not exceed
his statutory authority in requiring that, in order to remain
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96 BIDEN
v. MISSOURI
Per Curiam
eligible for Medicare and Medicaid dollars, the facilities cov-
ered
by the interim rule must ensure that their employees
be vaccinated against COVID–19.
B
We also disagree with respondents' remaining contentions
in support of the injunctions entered below. First, the in-
terim rule is not arbitrary and capricious. Given the
rulemaking record, it cannot be maintained that the Secre-
tary failed to “examine the relevant data and articulate a
satisfactory explanation for” his decisions to (1) impose the
vaccine mandate instead of a testing mandate; (2) require
vaccination 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 Secre-
tary “entirely failed to consider” that the rule might cause
staffng shortages, including in rural areas. State Farm,
463 U. S., at 43; see 86 Fed. Reg. 61566, 61569, 61607–61609.
As to the additional faws the District Courts found in the
Secretary's analysis, particularly concerning the nature 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).
Other statutory objections to the rule fare no better.
First, Justice Alito takes issue with the Secretary's fnd-
ing of good cause to delay notice and comment. But the
Secretary's fnding that accelerated promulgation of the rule
in advance of the winter fu season would signifcantly reduce
COVID–19 infections, hospitalizations, and deaths, 86 Fed.
Reg. 61584–61586, constitutes the “something specifc,” post,
at 106 (dissenting opinion), required to forgo notice and com-
ment. And we cannot say that in this instance the two
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as: 595 U. S. 87 (2022)
97
Per Curiam
months the agency took to prepare a 73-page rule constitutes
“delay”
inconsistent with the Secretary's fnding of good
cause. Second, we agree with the Secretary that he was
not required to “consult with appropriate State agencies,”
42 U. S. C. § 1395z, in advance of issuing the interim rule.
Consistent with the existence of the good cause exception,
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 prepare
a regulatory impact analysis discussing a rule's effect on
small rural hospitals when he acts through an interim fnal
rule; that requirement applies only where the Secretary pro-
ceeds on the basis of a “notice of proposed rulemaking,”
§ 1302(b)(1), followed by a “fnal version of [the] rule,”
§ 1302(b)(2). Lastly, the rule does not run afoul of the direc-
tive in § 1395 that federal offcials may not “exercise any su-
pervision or control over the . . . manner in which medical
services are provided, or over the selection [or] tenure . . . of
any offcer or employee of ” any facility. That reading of sec-
tion 1395 would mean that nearly every condition of partici-
pation 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
conferred upon it. At the same time, such unprecedented
circumstances 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 applications for a stay presented to Justice Alito and
Justice Kavanaugh and by them referred to the Court
are granted.
The District Court for the Eastern District of Missouri's
November 29, 2021, order granting a preliminary injunction
is stayed pending disposition of the Government's appeal in
the United States Court of Appeals for the Eighth Circuit

98 BIDEN
v. MISSOURI
Thomas, J., dissenting
and the disposition of the Government's petition for a writ
of
certiorari, if such writ is timely sought. Should the peti-
tion for a writ of certiorari be denied, this order shall termi-
nate 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 injunction
is stayed pending disposition of the Government's appeal in
the United States Court of Appeals for the Fifth Circuit and
the disposition of the Government's petition for a writ of
certiorari, if such writ is timely sought. Should the peti-
tion 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.
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 employ-
ees, volunteers, contractors, and other workers to receive a
COVID–19 vaccine. Covered employers must fre noncom-
pliant workers or risk fnes and termination of their Medi-
care and Medicaid provider agreements. As a result, the
Government has effectively mandated vaccination for 10 mil-
lion 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.
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Cite
as: 595 U. S. 87 (2022)
99
Thomas, J., dissenting
To obtain a stay, the Government must show that there is
(1)
a reasonable probability that we would grant certiorari;
(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 primarily
on whether the Government can make a ``strong showing ”
that it is likely to succeed on the merits. Nken v. Holder,
556 U. S. 418, 426 (2009). In my view, the Government 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 frst au-
thorizes CMS to “publish such rules and regulations . . . as
may be necessary to the effcient administration of the
[agency's] functions.” 42 U. S. C. § 1302(a). The second au-
thorizes CMS to “prescribe such regulations as may be
necessary to carry out the administration of the insurance
programs” under the Medicare Act. § 1395hh(a)(1).
The Government has not established that either provision
empowers it to impose a vaccine mandate. Rules carrying
out the “administration” of Medicare and Medicaid are those
that serve “the practical management and direction” 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 programs' practical man-
agement. 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 omni-
bus 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 and Medicaid, it is at most a
“tangential” one. Merck & Co., Inc., 962 F. 3d, at 538.
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100 BIDEN
v. MISSOURI
Thomas, J., dissenting
At oral argument, the Government largely conceded that
§
1302(a) and § 1395hh(a)(1) alone do not authorize the omni-
bus 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 patient
health and safety,” including a vaccine mandate applicable
to all facility types. Application in No. 21A240, p. 19. The
majority, too, treats these scattered provisions as a singular
(and unqualifed) 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-specifc 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 sup-
port an argument based on statutory text they lack. Per-
haps 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 identifes eight defnitional provi-
sions describing, for example, what makes a hospital a “hos-
pital.” These defne covered facilities as those that comply
with a variety of conditions, including “such other require-
ments as the Secretary fnds 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” regulations applicable
to “a l l-i nclusive care” programs for the elder ly, see
§§ 1395eee(f )(4), 1396u–4(f )(4), and a requirement that long-
term nursing facilities “establish and maintain an infection
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101
Thomas, J., dissenting
control program designed to provide a safe, sanitary, and
comfor
table environment . . . to help prevent the develop-
ment and transmission of disease,” § 1395i–3(d)(3)(A).
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 fnd virtually unlimited vaccination power, over
millions of healthcare workers, in defnitional provisions, a
saving clause, and a provision regarding long-term care facil-
ities' sanitation procedures. The Government has not ex-
plained why Congress would have used these ancillary pro-
visions 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—specifcally 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 defnitions,
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 defnes “hospital” for certain purposes.
Three subsections defne hospitals as providers of specifc
patient services, see §§ 1395x(e)(1), (4), (5), and fve describe
administrative requirements that a facility must meet to
qualify as a covered hospital, see §§ 1395x(e)(2)–(3), (6)–(8).
The fnal subsection then provides that a “hospital” must
also “mee[t] such other requirements as the Secretary fnds
necessary in the interest of the health and safety of individuals
who are furnished services.” § 1395x(e)(9) (emphasis added).
Contrary to the Government's position, this kind of catch-
all provision does not authorize every regulation related to
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“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) (citing Neal v.
Clark, 95 U. S. 704, 708 (1878)). “[W]here, as here, a more
general term follows more specifc terms in a list, the general
term is usually understood to embrace only objects similar in
nature to those objects enumerated by the preceding specifc
words.” Epic Systems Corp. v. Lewis, 584 U. S. –––, –––
(2018) (internal quotation marks omitted). That presump-
tion is particularly forceful where the statutory catchall re-
fers to “such other” requirements, signaling that the sub-
jects 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 hospitals to require virtually all
hospital personnel to be vaccinated. Rather, these subsec-
tions show that HHS' residual authority embraces only ad-
ministrative requirements like those that precede it—includ-
ing “provid[ing] 24-hour nursing service,” “maintain[ing]
clinical records on all patients,” or having “bylaws in effect.”
§§ 1395x(e)(2), (3), (5). A requirement that all healthcare
workers be vaccinated is plainly different in kind. The same
reasoning applies to almost all of the Government's proposed
facility-specifc statutes. 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-specifc provision is arguably different.
It regulates long-term care facilities and mandates an “infec-
tion control program” among its “health and safety” provi-
sions. § 1395i–3(d)(3). But that infection-control provision
focuses on sanitizing the facilities' “environment,” not its
personnel. Ibid. In any event, even if this statutory lan-
guage justifed a vaccine mandate in long-term care facilities,
it could not sustain the omnibus rule. Neither the “infection
control” language nor a reasonable analog appears in any of
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Thomas, J., dissenting
the other facility-specifc provisions. Basic interpretive
pr
inciples would thus suggest that CMS lacks vaccine-
mandating authority with respect to the other types of facili-
ties. 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 health-
care workers that the rule covers. 86 Fed. Reg. 61603. Put
simply, the oblique reference to “infection control” in the
defnitional provision for long-term care facilities cannot au-
thorize an omnibus vaccine mandate covering 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 point-
ing 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.
Relying 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 94 (citing
42 CFR § 483.60 (2020)), or that prescribe “the tasks that
may be delegated . . . to a physician assistant or nurse prac-
titioner,” ante, at 94 (citing § 483.30(e)), cannot support a vac-
cine mandate for healthcare personnel.
The Court also invokes a regulation requiring hospitals to
implement programs that “govern the `surveillance, preven-
tion, and control of . . . infectious diseases,' ” ante, at 94 (quot-
ing § 482.42), as well as a few regulations that require
` “infection prevention and control program[s]' ” at some (but
apparently not all) facility types. See ante, at 90 (citing,
inter alia, § 482.42). But many of these infection-control
regulations, like the infection-control program set out at 42
U. S. C. § 1395i–3(d)(3), are far afeld from immunization.
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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 resi-
dents 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 confrm that the Government has
failed to make a strong showing on the merits. “We expect
Congress to speak clearly when authorizing an agency to ex-
ercise powers of vast economic and political signifcance.”
Alabama Assn. of Realtors v. Department of Health and
Human Servs., 594 U. S. –––, ––– (2021) (per curiam) (inter-
nal quotation marks omitted). And we expect Congress to
use “exceedingly clear language if it wishes to signifcantly
alter the balance between federal and state power.” Ibid.
(internal quotation marks omitted). The omnibus rule is un-
doubtedly signifcant—it requires millions of healthcare
workers to choose between losing their livelihoods and acqui-
escing 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 Con-
gress had wanted to grant CMS authority to impose a nation-
wide vaccine mandate, and consequently alter the state-
federal balance, it would have said so clearly. It did not.
***
These cases are not about the effcacy or importance of
COVID–19 vaccines. They are only about whether CMS has
the statutory authority to force healthcare workers, by co-
ercing their employers, to undergo a medical procedure they
do not want and cannot undo. Because the Government has
not made a strong showing that Congress gave CMS that
broad authority, I would deny the stays pending appeal. I
respectfully dissent.
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105
Alito, J., dissenting
Justice Alito, with whom Justice Thomas, Justice
G
orsuch, 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 Con-
gress has authorized the unprecedented step of compelling
over 10,000,000 healthcare workers to be vaccinated on pain of
being fred. The support for the argument that the Federal
Government possesses such authority is so obscure that the
main argument now pressed by the Government—that the au-
thority 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 Fed-
eral 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 it did.
Under our Constitution, the authority to make laws that im-
pose obligations on the American people is conferred on Con-
gress, whose Members are elected by the people. Elected
representatives solicit the views of their constituents, listen
to their complaints and requests, and make a great effort to
accommodate their concerns. Today, however, most federal
law is not made by Congress. It comes in the form of rules
issued by unelected administrators. In order to give indi-
viduals 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 consideration, Con-
gress 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 com-
ment 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.
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Alito, J., dissenting
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. Al-
though today's ruling means only that the Federal Govern-
ment is likely to be able to show that this departure is lawful,
not that it actually is so, this ruling has an importance that
extends beyond the confnes 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. § 553(b)(3)(B). Although this Court has
never precisely defned what an agency must do to demon-
strate good cause, federal courts have consistently held that
exceptions to notice-and-comment must be “ `narrowly con-
strued 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), admits
it did not comply with the commonsense measure of seeking
public input before placing binding rules on millions of peo-
ple, but it claims that “[t]he data showing the vital impor-
tance of vaccination” indicate that it “cannot delay taking
this action.” 86 Fed. Reg., 61583 (2021). But CMS's gener-
alized justifcation cannot alone establish good cause to dis-
pense with Congress's clear procedural safeguards. An
agency seeking to show good cause must “point to something
specifc that illustrates a particular harm that will be caused
by the delay required for notice and comment.” United
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Alito, J., dissenting
States v. Brewer, 766 F. 3d 884, 890 (CA8 2014) (internal quo-
t
ation marks omitted).
Although CMS argues that an emergency justifes swift
action, both District Courts below held that CMS fatally
undercut that justifcation 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 mandate
itself delayed the compliance deadline further by another
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 publica-
tion”). This is hardly swift.
CMS argues that its delay, “even if true,” does not
provide a “reason to block a rule” that it claims will pro-
tect patient health. Application in No. 21A241, p. 36. It
claims that its departure from ordinary procedure after
extraordinary delay 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 affrma-
tive burden to show it has good cause, not respondents' bur-
den to prove the negative. Northern Arapahoe Tribe v.
Hodel, 808 F. 2d 741, 751 (CA10 1987). Congress placed pro-
cedural safeguards on executive rulemaking so agencies
would consider “important aspect[s] of the problem[s]” they
seek to address before restricting 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 present evidence refuting or contradicting
CMS's justifcations before the rule bound them. And be-
cause CMS acknowledged its own “uncertainty” and the
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“rapidly changing nature 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 com-
ment cannot be considered harmless if there is any uncer-
tainty at all as to the effect of that failure.” Sugar Cane
Growers Cooperative of Fla. 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 unexplained
and unjustifed delay, an agency can regulate frst and listen
later, and then put more than 10 million healthcare workers
to the choice of their jobs or an irreversible medica l
treatment.
Therefore, I respectfully dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 92, line 1, “61588” is replaced with “61558”
p. 95, line 6, “kinds” is replaced with “kind”
p. 95, line 8 from bottom, “Former” is inserted before “Secretaries”
p. 101, line 1, “(A)” is inserted after “(3)”
p. 103, line 5 from bottom, “and prevention” is replaced with “prevention
and”
p. 104, line 17, “state and federal” is replaced with “federal and state”