Biden v. Missouri

Summary

The Court grants the applications to stay the two injunctions barring the Secretary of Health and Human Services’ regulation requiring facilities that participate in Medicare and Medicaid to ensure that their employees are vaccinated against COVID–19.

Text

PRELIMINARY PRINT 
Volume 595 U. S. Part 1 
Pages 87–108 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
January 13, 2022 
REBECCA A. WOMELDORF 
reporter of decisions 
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NOTICE: 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, 
[email protected], 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 Stenehjem 
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 
facilities); 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. 
He 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-
tions 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, 
using 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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Cite 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 “all-inclusive care” programs for the elderly, 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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Cite as: 595 U. S. 87 (2022) 101 
Thomas, J., dissenting 
control program designed to provide a safe, sanitary, and 
comfortable 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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102 BIDEN v. MISSOURI 
Thomas, J., dissenting 
“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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Cite as: 595 U. S. 87 (2022) 103 
Thomas, J., dissenting 
the other facility-specifc provisions. Basic interpretive 
principles 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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104 BIDEN v. MISSOURI 
Thomas, J., dissenting 
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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Cite as: 595 U. S. 87 (2022) 105 
Alito, J., dissenting 
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 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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106 BIDEN v. MISSOURI 
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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Cite as: 595 U. S. 87 (2022) 107 
Alito, J., dissenting 
States v. Brewer, 766 F. 3d 884, 890 (CA8 2014) (internal quo-
tation 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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108 BIDEN v. MISSOURI 
Alito, J., dissenting 
“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 medical 
treatment. 
Therefore, I respectfully dissent. 
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Page Proof Pending Publication
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”

Retrieval chunks

• #1

  PRELIMINARY PRINT Volume 595 U. S. Part 1 Pages 87–108 OFFICIAL REPORTS OF THE SUPREME COURT January 13, 2022 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to no…

• #2

  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…

• #3

  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 Mississip…

• #4

  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…

• #5

  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 “infecti…

• #6

  themselves forgo seeking medically necessary care,” creating Page Proof Pending Publication Page Proof Pending Publication 92 BIDEN v. MISSOURI Per Curiam a further “ris[k] to patient health and safety.” Id., at 61558. He further noted that staffng shortages caused by COVID– 19-related exposures or illness has …

• #7

  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 av…

• #8

  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 physi…

• #9

  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 req…

• #10

  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…

• #11

  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 pen…

• #12

  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 cu…

• #13

  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 …

• #14

  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 Congres…

• #15

  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…

• #16

  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 …

• #17

  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 vacci…

• #18

  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 b…

• #19

  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 Page Proof Pending Pub…

• #20

  “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 Cooperat…