_________________

_________________ 1 (Slip Opinion) Cite as: 595 U. S. ____ (2022)

Per Curiam

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other form al errors, in order that corrections may be made before the preliminary print goes to press. 

## SUPREME COURT OF THE UNITED STATES

Nos. 21A240 and 21A241

JOSEPH R. BIDEN, J R ., PRESIDENT OF THE UNITED STATES, ET AL ., APPLICANTS 21A240 v. MISSOURI, ET AL

.

XAVIER BECERRA, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL ., APPLICANTS 21A241 v. LOUISIANA, ET AL

.
ON APPLICATIONS FOR STAYS
[January 13, 2022]

P ER C URIAM

. The Secretary of Health and Human Services adminis

ters the Medicare and Medicaid programs, which providehealth insurance for millions of elderly, disabled, and lowincome Americans. In November 2021, the Secretary an

nounced that, in order to receive Medicare and Medicaid funding, participating facilities must ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID–19. 86 Fed. Reg. 61555 (2021). Two District Courts enjoined enforcement of the rule, and the Government now asks us to stay those injunctions. Agreeing that it is entitled to such relief, we grant the ap

plications.2 BIDEN v. MISSOURI

Per Curiam

I A The Medicare program provides health insurance to indi

viduals 65 and older, as well as those with specified disabil

ities. The Medicaid program does the same for those with low incomes. Both Medicare and Medicaid are adminis

tered by the Secretary of Health and Human Services, who has general statutory authority to promulgate regulations “as may be necessary to the e fficient administration of the functions with which [he] is charged.” 42 U. S. C. §1302(a). One such function—perhaps the most basic, given the De

partment’s core mission—is to ensure that the healthcare providers who care for Medicare and Medicaid patients pro

tect their patients’ health and safety. Such providers in

clude hospitals, nursing homes, ambulatory surgical cen

ters, hospices, rehabilitation fa cilities, and more. To that end, Congress authorized the Se cretary to promulgate, as a condition of a facility’s participation in the programs, such “requirements as [he] finds nece ssary in the interest of the health and safety of individuals who are furnished services in the institution.” 42 U. S. C. §1395x(e)(9) (hospitals); see,
e.g. , §§1395x(cc)(2)(J) (outpatient rehabilitation facilities), 1395i–3(d)(4)(B) (skilled nursing facilities), 1395k(a)(2)(F) (i) (ambulatory surgical centers); see also §§1396r(d)(4)(B), 1396d( l )(1), 1396d( o ) (corresponding provisions in Medicaid Act). Relying on these authorities, the Secretary has estab

lished long lists of detailed conditions with which facilities must comply to be eligible to receive Medicare and Medicaid funds. See, e.g. , 42 CFR pt. 482 (2020) (hospitals); 42 CFR pt. 483 (long-term care facilities); 42 CFR §§ 416.25–416.54 (ambulatory surgical centers). Such conditions have long included a requirement that certain providers maintain and enforce an “infection prevention and control program designed . . . to help prevent the development and transmis

sion of communicable diseases and infections.” §483.803 Cite as: 595 U. S. ____ (2022)

Per Curiam (long-term care facilities); see, e.g. , §§482.42(a) (hospitals), 416.51(b) (ambulatory surgical centers), 485.725 (facilities that provide outpatient phys ical therapy and speech-lan

guage pathology services).

B On November 5, 2021, the Secretary issued an interim final rule amending the existing conditions of participation in Medicare and Medicaid to add a new requirement—that facilities ensure that their covered staff are vaccinated against COVID–19. 86 Fed. Reg. 61561, 61616–61627. The rule requires providers to offer medical and religious ex

emptions, and does not cover st aff who telework full-time. Id. , at 61571–61572. A facility’s failure to comply may lead to monetary penalties, denial of payment for new admis

sions, and ultimately termination of participation in the
programs. Id. , at 61574. The Secretary issued the rule after finding that vaccina

tion of healthcare workers against COVID–19 was “neces

sary for the health and safety of individuals to whom care and services are furnished.” Id. , at 61561. In many facili

ties, 35% or more of staff remain unvaccinated, id. , at 61559, and those staff, the Secretary explained, pose a seri

ous threat to the health and sa fety of patients. That deter

mination was based on data showing that the COVID–19 virus can spread rapidly am ong healthcare workers and from them to patients, and that such spread is more likely when healthcare workers are unvaccinated. Id. , at 61558– 61561, 61567–61568, 61585–61586. He also explained that, because Medicare and Medicaid patients are often elderly, disabled, or otherwise in poor health, transmission of COVID–19 to such patients is particularly dangerous. Id.
,at 61566, 61609. In addition to the threat posed by infacility transmission itself, th e Secretary also found that “fear of exposure” to the virus “from unvaccinated health care staff can lead patients to themselves forgo seeking4 BIDEN v. MISSOURI

Per Curiam medically necessary care,” creat ing a further “ris[k] to pa

tient health and safety.” Id. , at 61588. He further noted that staffing shortages caus ed by COVID–19-related expo

sures or illness has disrupted patient care. Id. , at 61559. The Secretary issued the rule as an interim final rule, rather than through the typical notice-and-comment proce

dures, after finding “good cause” that it should be made ef

fective immediately. Id. , at 61583–61586; see 5 U. S. C. §553(b)(B). That good cause was, in short, the Secretary’s belief that any “further delay” would endanger patient health and safety given the spread of the Delta variant and the upcoming winter season. 86 Fed. Reg. 61583–61586.

C Shortly after the interim rule’s announcement, two groups of States—one led by Louisiana and one by Mis

souri—filed separate actions challenging the rule. The U. S. District Courts for the Western District of Louisiana and the Eastern District of Missouri each found the rule de

fective and entered preliminary injunctions against its en

forcement. Louisiana v. Becerra , 2021 WL 5609846 (Nov. 30, 2021); Missouri v. Biden , 2021 WL 5564501 (Nov. 29, 2021). In each case, the Government moved for a stay of the injunction from the relevant Court of Appeals. In Lou

isiana , the Fifth Circuit denied the Government’s motion. 20 F. 4th 260 (2021). In Missouri , the Eighth Circuit did so as well. See Order in No. 21–3725 (Dec. 13, 2021). The Government filed applications asking us to stay both Dis

trict Courts’ preliminary injun ctions, and we heard expe

dited argument on its requests.

II A First, we agree with the Go vernment that the Secretary’s rule falls within the authorities that Congress has con

ferred upon him.5 Cite as: 595 U. S. ____ (2022)

Per Curiam Congress has authorized the Secretary to impose condi

tions on the receipt of Medica id and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” 42 U. S. C. §1395x(e)(9).* COVID–19 is a highly contagious,dangerous, and—especially for Medicare and Medicaid patients—deadly disease. The Secretary of Health and Hu

man Services determined that a COVID–19 vaccine man

date will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients. 86 Fed. Reg. 61557–61558. He accord

ingly concluded that a vaccine mandate is “necessary to pro

mote and protect patient health and safety” in the face of the ongoing pandemic. Id. , at 61613. The rule thus fits neatly within the language of the stat

ute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is con

sistent with the fundamental principle of the medical pro

fession: first, do no harm. It would be the “very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19.” Florida v. Department of Health and Human Servs. , 19 F. 4th 1271, 1288 (CA11 2021). The States and J USTICE T HOMAS offer a narrower view of

——————

*While this provision pertains only to hospitals, the Secretary has sim

ilar statutory powers with respect to most other categories of healthcare facilities covered by the interim rule. See supra , at 2. J USTICE T HOMAS points out that for five such kinds of facilities, the relevant statute does not contain express “health and safety” language. Post , at 3 (dissenting opinion). But employees at these fa cilities—which include end-stage re

nal disease clinics and home infusi on 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 pertin ent statutory language may be read as incorporating the “health and sa fety” authorities applicable to the other 97%. See, e.g. , 42 U. S. C. §1396d(d)(1). We see no reason to let the infusion-clinic tail wag the hospital dog, especially because the rule has an express severability provision. 86 Fed. Reg. 61560.6 BIDEN v. MISSOURI

Per Curiam the various authorities at issue, contending that the seem

ingly broad language cited above authorizes the Secretary to impose no more than a list of bureaucratic rules regard

ing the technical administration of Medicare and Medicaid. But the longstanding practice of Health and Human Ser

vices in implementing the relevant statutory authorities tells a different story. As noted above, healthcare facilities that wish to participate in Medicare and Medicaid have al

ways been obligated to satisfy a host of conditions that ad

dress the safe and effective provision of healthcare, not simply sound accounting. Such requirements govern in de

tail, for instance, the amount of time after admission or sur

gery within which a hospital patient must be examined and by whom, 42 CFR §482.22(c)(5), the procurement, transpor

tation, and transplantation of human kidneys, livers, hearts, lungs, and pancreases, §482.45, the tasks that may be delegated by a physician to a physician assistant or nurse practitioner, §483.30(e), and, most pertinent here, the programs that hospitals must implement to govern the “surveillance, prevention, and control of . . . infectious dis

eases,” §482.42. Moreover, the Secretary routinely imposes conditions of participation that relate to the qualifications and duties of healthcare workers themselves. See, e.g. , §§482.42(c) (2)(iv) (requiring training of “hospital personnel and staff ” on “infection prevention and control guidelines”), 483.60(a)(1)(ii) (qualified dieticians must have completed at least 900 hours of supervised practice), 482.26(b)–(c) (spec

ifying personnel authorized to use radiologic equipment). And the Secretary has always justified these sorts of re

quirements by citing his autho rities to protect patient health and safety. See, e.g. , §§482.1(a)(1)(ii), 483.1(a)(1)(ii), 416.1(a)(1). As these examples illustrate, the Secretary’s role in administering Medicare and Medicaid goes far be

yond that of a mere bookkeeper. Indeed, respondents do not contest the validity of this7 Cite as: 595 U. S. ____ (2022)

Per Curiam longstanding litany of health-related participation condi

tions. When asked at oral argument whether the Secretary could, using the very same statutory authorities at issue here, require hospital employees to wear gloves, sterilize in

struments, wash their hands in a certain way and at certain intervals, and the like, Missouri answered yes: “[T]he Sec

retary certainly has authority to implement all kinds of in

fection control measures at these facilities.” Tr. of Oral Arg. 57–58. Of course the vaccine mandate goes further than what the Secretary has done in the past to implement in

fection control. But he has never had to address an infec

tion problem of this scale and scope before. In any event, there can be no doubt that addressing infection problems in Medicare and Medicaid facilities is what he does. And his response is not a surprising one. Vaccination re

quirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily require d to be vaccinated for dis

eases such as hepatitis B, influenza, and measles, mumps, and rubella. CDC, State Healthcare Worker and Patient Vaccination Laws (Feb. 28, 2018), https://www.cdc.gov / phlp/publications/topic/vaccinat ionlaws.html. As the Sec

retary explained, these pre-existing state requirements are a major reason the agency has not previously adopted vac

cine mandates as a condition of participation. 86 Fed. Reg. 61567–61568.All this is perhaps why healthcare workers and publichealth organizations overwhelmingly support the Secre

tary’s rule. See id. , at 61565–61566; see also Brief for American Medical Assn. et al. as Amici Curiae ; Brief for American Public Health Assn. et al. as Amici Curiae ; Brief for Secretaries of Health and Human Services et al. as Amici Curiae . Indeed, their support suggests that a vac

cination requirement under these circumstances is a straightforward and predictabl e example of the “health and8 BIDEN v. MISSOURI

Per Curiam safety” regulations that Cong ress has authorized the Secre

tary to impose. We accordingly conclude t hat the Secretary did not ex

ceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the fa

cilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.

B We also disagree with respondents’ remaining conten

tions in support of the injunctions entered below. First, theinterim rule is not arbitrary and capricious. Given the rulemaking record, it cannot be maintained that the Secretary failed to “examine the relevant data and articulate a satis

factory explanation for” his deci sions to (1) impose the vac

cine mandate instead of a testing mandate; (2) require vac

cination of employees with “natural immunity” from prior COVID–19 illness; and (3) depart from the agency’s prior approach of merely encouraging vaccination. Motor Vehicle Mfrs. Assn. of United States

, Inc. v. State Farm Mut. Auto

mobile Ins. Co. , 463 U. S. 29, 43 (1983); see 86 Fed. Reg. 61583, 61559–61561, 61614. Nor is it the case that the Sec

retary “entirely failed to consider” that the rule might cause staffing shortages, including in rural areas. State Farm

, 463 U. S., at 43; see 86 Fed. Reg. 61566, 61569, 61607– 61609. As to the additional flaws the District Courts found in the Secretary’s analysis, pa rticularly concerning the na

ture of the data relied upon, the role of courts in reviewing arbitrary and capricious challenges is to “simply ensur[e] that the agency has acted within a zone of reasonableness.” FCC v. Prometheus Radio Project , 592 U. S. ___, ___ (2021) (slip op., at 12). Other statutory objections to the rule fare no better. First, J USTICE A LITO takes issue with the Secretary’s find

ing of good cause to delay notice and comment. But the Sec

retary’s finding that accelerate d promulgation of the rule in9 Cite as: 595 U. S. ____ (2022)

Per Curiam

advance of the winter flu seas on would significantly reduce COVID–19 infections, hospitalizations, and deaths, 86 Fed. Reg. 61584–61586, constitutes the “something specific,” post , at 3 (dissenting opinion), required to forgo notice and comment. And we cannot say that in this instance the two months the agency took to pr epare a 73-page rule consti

tutes “delay” inconsistent with the Secretary’s finding of good cause. Second, we agree with the Secretary that he was not required to “consult with appropriate State agen

cies,” 42 U. S. C. §1395z, in advance of issuing the interim rule. Consistent with the existence of the good cause excep

tion, which was properly invoked here, consultation during the deferred notice-and-comment period is permissible. We similarly concur with the Secretary that he need not pre

pare a regulatory impact analysis discussing a rule’s effect on small rural hospitals when he acts through an interim final rule; that requirement applies only where the Secre

tary proceeds on the basis of a “notice of proposed rulemak

ing,” §1302(b)(1), followed by a “f inal version of [the] rule,” §1302(b)(2). Lastly, the rule does not run afoul of the di

rective in §1395 that federal o fficials may not “exercise any supervision or control over the . . . manner in which medical services are provided, or over th e selection [or] tenure . . . of any officer or employee of ” any facility. That reading of sec

tion 1395 would mean that nearly every condition of partic

ipation the Secretary has long insisted upon is unlawful.

* * * The challenges posed by a global pandemic do not allow a federal agency to exercise po wer that Congress has not con

ferred upon it. At the same time, such unprecedented cir

cumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have. Because the latter principle governs in these cases, the ap

plications for a stay presented to J USTICE A LITO and J USTICE K AVANAUGH and by them referred to the Court are10 BIDEN v. MISSOURI

Per Curiam granted. The District Court for the Eastern District of Missouri’s November 29, 2021, order granting a preliminary injunc

tion is stayed pending disposition of the Government’s ap

peal in the United States Court of Appeals for the Eighth Circuit and the disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court. The District Court for the Western District of Louisiana’s November 30, 2021, order granting a preliminary injunc

tion is stayed pending disposition of the Government’s ap

peal in the United States Court of Appeals for the Fifth Cir

cuit and the disposition of th e Government’s petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.

It is so ordered._________________

_________________ 1 Cite as: 595 U. S. ____ (2022)

T HOMAS , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

Nos. 21A240 and 21A241

JOSEPH R. BIDEN, J R ., PRESIDENT OF THE UNITED STATES, ET AL ., APPLICANTS 21A240 v. MISSOURI, ET AL

.

XAVIER BECERRA, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL ., APPLICANTS 21A241 v. LOUISIANA, ET AL

.
ON APPLICATIONS FOR STAYS
[January 13, 2022]

J USTICE T HOMAS , with whom J USTICE A LITO , J USTICE G ORSUCH , and J USTICE B ARRETT join, dissenting. Two months ago, the Department of Health and Human Services (HHS), acting through the Centers for Medicare and Medicaid Services (CMS), issued an omnibus rule man

dating that medical facilities nationwide order their em

ployees, volunteers, contractors, and other workers to re

ceive a COVID–19 vaccine. Co vered employers must fire noncompliant workers or risk fines and termination of their Medicare and Medicaid provider agreements. As a result, the Government has effectively mandated vaccination for 10 million healthcare workers. Two District Courts preliminarily enjoined enforcement of the omnibus rule, and the Government now requests an emergency stay of those injunctions pending appeal. Be

cause the Government has not made a strong showing that it has statutory authority to issue the rule, I too would deny a stay.2 BIDEN v. MISSOURI

T HOMAS , J., dissenting To obtain a stay, the Government must show that there is (1) a reasonable probability that we would grant certio

rari; (2) a fair prospect that we would reverse the judgments below; and (3) a likelihood that irreparable harm will result from denying a stay. Hollingsworth v. Perry , 558 U. S. 183, 190 (2010) ( per curiam ). Because there is no real dispute that this case merits our review, our decision turns primar

ily on whether the Government can make a “strong show

ing” that it is likely to succeed on the merits. Nken v. Holder , 556 U. S. 418, 426 (2009). In my view, the Govern

ment has not made such a showing here. The Government begins by invoking two statutory provi

sions that generally grant CMS authority to promulgate rules to implement Medicare and Medicaid. The first au

thorizes CMS to “publish such rules and regulations . . . as may be necessary to the efficient administration of the [agency’s] functions.” 42 U. S. C. §1302(a). The second au

thorizes CMS to “prescribe su ch regulations as may be nec

essary to carry out the admini stration of the insurance pro

grams” under the Medicare Act. §1395hh(a)(1). The Government has not established that either provi

sion empowers it to impose a vaccine mandate. Rules car

rying out the “administration” of Medicare and Medicaid are those that serve “the practical management and direc

tion” of those programs. Black’s Law Dictionary 58 (3d ed. 1933). Such rules are “necessary” to “administration” if they bear “an actual and discernible nexus” to the pro

grams’ practical management. Merck & Co.

, Inc. v. United States Dept. of Health and Human Servs. , 962 F. 3d 531, 537–538 (CADC 2020) (internal quotation marks omitted). Here, the omnibus rule compels millions of healthcare workers to undergo an unwant ed 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 Medicare3 Cite as: 595 U. S. ____ (2022)

T HOMAS , J., dissenting and Medicaid, it is at most a “tangential” one. Merck & Co.

, Inc. , 962 F. 3d, at 538. At oral argument, the Government largely conceded that §1302(a) and §1395hh(a)(1) alone do not authorize the om

nibus rule. See Tr. of Oral Arg. 7, 10. Instead, it fell back on a constellation of statutory provisions that each concern one of the 15 types of medical facilities that the rule covers. See 86 Fed. Reg. 61567 (2021). Several of those provisions contain language indicating that CMS may regulate those facilities in the interest of “health and safety.” In the Gov

ernment’s view, that language authorizes CMS to adopt any “requirements that [CMS] deems necessary to ensure pa

tient health and safety,” including a vaccine mandate ap

plicable to all facility types. Application in No. 21A240, p. 19. The majority, too, treats these scattered provisions as a singular (and unqualified) dele gation to the Secretary to adopt health and safety regulations. The Government has not made a strong showing that this agglomeration of statutes authorizes any such rule. To start, 5 of the 15 facility-specific statutes do not authorize CMS to impose “health and safety” regulations at all. See 42 U. S. C. §§1396d(d)(1), (h)(1)(B)(i), 1395rr(b)(1)(A), 1395x(iii)(3)(D)(i)(IV), 1395i–4(e). These provisions cannot support an argument based on statutory text they lack. Perhaps that is why the Government only weakly defends them as a basis for its authority. See Tr. of Oral Arg. 25– 28. Next, the Government identifi es eight definitional provi

sions describing, for example, what makes a hospital a “hos

pital.” These define covered facilities as those that comply with a variety of conditions, including “such other require

ments as the Secretary finds necessary in the interest of . . . health and safety.” §1395x(e)(9); see also §§1395x(dd)(2)(G), ( o )(6), (ff )(3)(B)(iv), (cc)(2)(J), (p)(4)(A)(v), (aa)(2)(K), 1395k(a)(2)(F)(i). The Government similarly invokes a saving clause for “health and safety”4 BIDEN v. MISSOURI

T HOMAS , J., dissenting regulations applicable to “all-inclusive care” programs for the elderly, see §§1395eee(f )(4), 1396u–4(f )(4), and a re

quirement that long-term nursi ng facilities “establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment . . . to help prevent the development and transmission of disease,” §1395i–3(d)(3). The Government has not made a strong showing that this hodgepodge of provisions authorizes a nationwide vaccine mandate. We presume that Congress does not hide “funda

mental details of a regulatory scheme in vague or ancillary provisions.” Whitman v. American Trucking Assns.
, Inc.
, 531 U. S. 457, 468 (2001). Yet here, the Government pro

poses to find virtually unlimited vaccination power, over millions of healthcare workers, in definitional provisions, a saving clause, and a provision regarding long-term care facilities’ sanitation procedures. The Government has not explained why Congress would have used these ancillary provisions to house what can only be characterized as a “fundamental detail” of the statutory scheme. Had Con

gress wanted to grant CMS power to impose a vaccine man

date across all facility types, it would have done what it has done elsewhere—specifically autho rize one. See 22 U. S. C. §2504(e) (authorizing mandate for “such immunization . . . as necessary and appropriate” for Peace Corps volunteers). Nonetheless, even if I were to accept that Congress could have hidden vaccine-mandate power in statutory defini

tions, the language in these “health and safety” provisions does not suggest that Congress did so. Take, for example, 42 U. S. C. §1395x(e), which defines “hospital” for certain purposes. Three subsections define hospitals as providers of specific patient services, see §§1395x(e)(1), (4), (5), and five describe administrative requirements that a facility must meet to qualify as a covered hospital, see §§1395x(e)(2)–(3), (6)–(8). The final subsection then pro

-5 Cite as: 595 U. S. ____ (2022)

T HOMAS , J., dissenting vides that a “hospital” must also “mee[t] such other require

ments as the Secretary finds necessary in the interest of the health and safety of individuals who are furnished ser

vices.” §1395x(e)(9) (emphasis added). Contrary to the Government’s position, this kind of catchall provision does not authorize every regulation re

lated to “health and safety.” As with all statutory language, context must inform the scop e of the provision. See AT&T Corp. v. Iowa Utilities Bd. , 525 U. S. 366, 408 (1999) (T HOMAS , J., concurring in part and dissenting in part) (cit

ing Neal v. Clark , 95 U. S. 704, 708 (1878)). “[W]here, as here, a more general term follo ws more specific terms in a list, the general term is usually understood to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Epic Systems Corp. v. Lewis , 584 U. S. ___, ___ (2018) (slip op., at 12) (internal quotation marks omitted). That presumption is particularly forceful where the statutory catchall refers to “such other” require

ments, signaling that the subjects that come before delimit any residual authority. See ibid. Here, in §1395x(e), none of the myriad subsections preceding the “health and safety” subsection suggests that the Government can order hospi

tals to require virtually all hospital personnel to be vac

cinated. Rather, these subsections show that HHS’ residual authority embraces only administrative requirements like those that precede it—includi ng “provid[ing] 24-hour nurs

ing service,” “maintain[ing] clinical records on all patients,” or having “bylaws in effect.” §§1395x(e)(2), (3), (5). A re

quirement that all healthcare workers be vaccinated is plainly different in kind. The same reasoning applies to al

most all of the Government’s proposed facility-specific stat

utes. See §§1395x(aa)(2), (dd)(2), ( o )(6); see also §§1395x(ff )(3)(B), (p)(4)(A), (cc)(2), 1395eee, 1396u–4(f )(4). Only one facility-specific pr ovision is arguably different. It regulates long-term care facilities and mandates an “infection control program” among its “health and safety”6 BIDEN v. MISSOURI

T HOMAS , J., dissenting provisions. §1395i–3(d)(3). But that infection-control pro

vision focuses on sanitizing the facilities’ “environment,” not its personnel. Ibid. In any event, even if this statutory language justified a vaccine mandate in long-term care fa

cilities, it could not sustain the omnibus rule. Neither the “infection control” language nor a reasonable analog ap

pears in any of the other facility-specific provisions. Basic interpretive principles would thus suggest that CMS lacks vaccine-mandating authority with respect to the other types of facilities. See Russello v. United States , 464 U. S. 16, 23 (1983). And, of course, the omnibus rule cannot rest on the long-term care provision alone. By CMS’ own estimate, long-term care facilit ies employ only 10% of the 10 million healthcare workers t hat the rule covers. 86 Fed. Reg. 61603. Put simply, the oblique reference to “infection control” in the definitional pr ovision for long-term care fa

cilities cannot authorize an omnibus vaccine mandate cov

ering every type of facility that falls within CMS’ purview. For its part, the Court does not rely on the Government’s proffered statutory provisions. Instead, it asserts that CMS possesses broad vaccine-mandating authority by pointing to a handful of CMS regulations. To begin, the Court does not explain why the bare existence of these regulations is evidence of what Congress empowered the agency to do. Re

lying on them appears to put the cart before the horse. Regardless, these regulations provide scant support for the sweeping power the Govern ment now claims. For ex

ample, CMS regulations that mandate the number of hours a dietician must practice under supervision, ante , at 6 (cit

ing 42 CFR §483.60 (2020)), or that prescribe “the tasks that may be delegated . . . to a physician assistant or nurse practitioner,” ante, at 6 (citing §483.30(e)), cannot support a vaccine mandate for healthcare personnel. The Court also invokes a regulation requiring hospitals to implement programs that “govern the ‘surveillance, pre

vention, and control of . . . infectious diseases,’ ” ante, at 67 Cite as: 595 U. S. ____ (2022)

T HOMAS , J., dissenting (quoting §482.42), as well as a few regulations that require “infection and prevention control programs” at some (but apparently not all) facility types. See ante , at 3 (citing, inter alia , §482.42). But many of these infection-control regula

tions, like the infection-control program set out at 42 U. S. C. §1395i–3(d)(3), are far afield from immunization. See, e.g. , 42 CFR §§485.725(b)–(e) (specifying requirements for “aseptic techniques,” “house keeping services,” “[l]inens,” and “[p]est control”). And insofar as they do touch on im

munization, they require only that facilities offer their res

idents the opportunity to obtain a vaccine, along with “the opportunity to refuse” it. §483.80(d)(1). These regulations are not precedents for CMS’ newfound authority mandating that all employees be vaccinated. Finally, our precedents confirm that the Government has failed to make a strong showing on the merits. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Hu

man Servs. , 594 U. S. ___, ___ (2021) ( per curiam ) (slip op., at 6) (internal quotation marks omitted). And we expect Congress to use “exceedingly clear language if it wishes to significantly alter the balance between state and federal power.” Ibid. (internal quotation marks omitted). The om

nibus rule is undoubtedly significant—it requires millions of healthcare workers to choose between losing their liveli

hoods and acquiescing to a vaccine they have rejected for months. Vaccine mandates also fall squarely within a State’s police power, see Zucht v. King , 260 U. S. 174, 176 (1922), and, until now, only rarely have been a tool of the Federal Government. If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.8 BIDEN v. MISSOURI

T HOMAS , J., dissenting

* * * These cases are not about the efficacy or importance of COVID–19 vaccines. They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo. Because the Govern

ment has not made a strong showing that Congress gave CMS that broad authority, I would deny the stays pending appeal. I respectfully dissent._________________

_________________ 1 Cite as: 595 U. S. ____ (2022)

A LITO , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

Nos. 21A240 and 21A241

JOSEPH R. BIDEN, J R ., PRESIDENT OF THE UNITED STATES, ET AL ., APPLICANTS 21A240 v. MISSOURI, ET AL

.

XAVIER BECERRA, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL ., APPLICANTS 21A241 v. LOUISIANA, ET AL

.
ON APPLICATIONS FOR STAYS
[January 13, 2022]

J USTICE A LITO , with whom J USTICE T HOMAS , J USTICE G ORSUCH , and J USTICE B ARRETT join, dissenting. I join J USTICE T HOMAS ’s dissent because I do not think that the Federal Government is likely to be able to show that Congress has authorized the unprecedented step of compelling over 10,000,000 healthcare workers to be vac

cinated on pain of being fired. The support for the argu

ment that the Federal Govern ment possesses such author

ity is so obscure that the main argument now pressed by the Government—that the authority is conferred by a hodgepodge of scattered provisions—was not prominently set out by the Government until it s reply brief in this Court. Before concluding that the Federal Government possesses this authority, we should demand stronger statutory proof than has been mustered to date. But even if the Federal Government has the authority to require the vaccination of heal thcare workers, it did not have the authority to impose that requirement in the way2 BIDEN v. MISSOURI

A LITO , J., dissenting it did. Under our Constitution, the authority to make laws that impose obligations on th e American people is conferred on Congress, whose Members are elected by the people. Elected representatives solicit the views of their constitu

ents, listen to their complain ts and requests, and make a great effort to accommodate their concerns. Today, how

ever, most federal law is not made by Congress. It comes in the form of rules issued by unelected administrators. In or

der to give individuals and en tities who may be seriously impacted by agency rules at least some opportunity to make their views heard and to have them given serious consider

ation, Congress has clearly re quired that agencies comply with basic procedural safeguards. Except in rare cases, an agency must provide public no tice of proposed rules, 5 U. S. C. §553(b); the public must be given the opportunity to comment on those proposals, §553(c); and if the agency issues the rule, it must address concerns raised during the notice-and-comment process. United States v. Nova Scotia Food Products Corp. , 568 F. 2d 240, 252 (CA2 1977); see also Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U. S. 29, 43 (1983). The rule may then be challenged in court, and the court may declare the rule unlawful if these procedures have not been followed. In these cases, the relevant agency did none of those things, and the Court rewards this extraordinary departure from ordinary principles of administrative procedure. Alt

hough today’s ruling means only that the Federal Govern

ment is likely to be able to sh ow that this departure is law

ful, not that it actually is so, this ruling has an importance that extends beyond the confines of these cases. It may have a lasting effect on Executive Branch behavior.Because of the importance of notice-and-comment rulemaking, an agency must show “g ood cause” if it wishes to skip that process. 5 U. S. C. §553(b)(3)(B). Although this Court has never precisely defined what an agency must do3 Cite as: 595 U. S. ____ (2022)

A LITO , J., dissenting to demonstrate good cause, fe deral courts have consistently held that exceptions to notice-and-comment must be “ ‘nar

rowly construed and only reluctantly countenanced.’ ” Mack Trucks, Inc. v. EPA , 682 F. 3d 87, 93 (CADC 2012) (quoting Utility Solid Waste Activities Group v. EPA , 236 F. 3d 749, 754 (CADC 2001)); see also C. Koch & R. Murphy, Good Cause for Avoiding Procedures, 1 Admin. L. & Prac. §4:13 (3d ed. 2021). The agency that issued the mandate at issue here, i.e.
, the Centers for Medicare and Medicaid Services (CMS), ad

mits it did not comply with the commonsense measure of seeking public input before placing binding rules on mil

lions of people, but it claims that “[t]he data showing the vital importance of vaccination” indicate that it “cannot de

lay taking this action.” 86 Fed. Reg. 61555, 61583 (2021). But CMS’s generalized justification cannot alone establish good cause to dispense with Congress’s clear procedural safeguards. An agency seekin g to show good cause must “point to something specific that illustrates a particular harm that will be caused by the delay required for notice and comment.” United States v. Brewer , 766 F. 3d 884, 890 (CA8 2014) (internal quotation marks omitted). Although CMS argues that an emergency justifies swift action, both District Courts be low held that CMS fatally un

dercut that justification with its own repeated delays. The vaccines that CMS now claims are vital had been widely available 10 months before CMS’s mandate, and millions of healthcare workers had alread y been vaccinated before the agency took action. President Biden announced the CMS mandate on September 9, 2021, nearly two months before the agency released the rule on November 5, and the man

date itself delayed the compliance deadline further by an

other month until December 6. 86 Fed. Reg. 61555; id., at 61573 (making implementation of the vaccine mandate begin “30 days after publication” and completed “60 days after publication”). This is hardly swift.4 BIDEN v. MISSOURI

A LITO , J., dissenting CMS argues that its delay, “even if true,” does not provide a “reason to block a rule” that it claims will protect patient health. Application in No. 21A241, p. 36. It claims that its departure from ordinary procedure after extraordinary de

lay should be excused because nobody can show they were prejudiced by the lack of a comment period before the rule took effect. But it is CMS’s affirmative burden to show it has good cause, not respondents’ burden to prove the nega

tive. Northern Arapahoe Tribe v. Hodel , 808 F. 2d 741, 751 (CA10 1987). Congress placed pr ocedural safeguards on ex

ecutive rulemaking so agencies would consider “important aspect[s] of the problem[s]” they seek to address before re

stricting the liberty of the people they regulate. State Farm , 463 U. S., at 43. Because CMS chose to circumvent notice-and-comment, States that run Medicaid facilities, as well as other regulated parties, had no opportunity to pre

sent evidence refuting or contradicting CMS’s justifications before the rule bound them. And because CMS acknowl

edged its own “uncertainty” and the “rapidly changing na

ture of the current pandemic,” 86 Fed. Reg. 61589, it should have been more receptive to feedback, not less. “[A]n utter failure to comply with noti ce and comment cannot be con

sidered harmless if there is any uncertainty at all as to the effect of that failure.” Sugar Cane Growers Cooperative of Florida v. Veneman , 289 F. 3d 89, 96 (CADC 2002). Today’s decision will ripple through administrative agen

cies’ future decisionmaking. The Executive Branch already touches nearly every aspect of Americans’ lives. In conclud

ing that CMS had good cause to avoid notice-and-comment rulemaking, the Court shifts the presumption against com

pliance with procedural strictures from the unelected agency to the people they regulate. Neither CMS nor the Court articulates a limiting pr inciple for why, after an un

explained and unjustified delay, an agency can regulate first and listen later, and then put more than 10 million5 Cite as: 595 U. S. ____ (2022)

A LITO , J., dissenting

healthcare workers to the choi ce of their jobs or an irre

versible medical treatment. Therefore, I respectfully dissent.