Supreme Court of The United States: 1 Cite As: 595 U. S. - (2022) Per Curiam
Supreme Court of The United States: 1 Cite As: 595 U. S. - (2022) Per Curiam
____ (2022) 1
Per Curiam
PER CURIAM.
The Secretary of Health and Human Services adminis-
ters the Medicare and Medicaid programs, which provide
health insurance for millions of elderly, disabled, and low-
income Americans. In November 2021, the Secretary an-
nounced that, in order to receive Medicare and Medicaid
funding, participating facilities must ensure that their
staff—unless exempt for medical or religious reasons—are
vaccinated against COVID–19. 86 Fed. Reg. 61555 (2021).
Two District Courts enjoined enforcement of the rule, and
the Government now asks us to stay those injunctions.
Agreeing that it is entitled to such relief, we grant the ap-
plications.
2 BIDEN v. MISSOURI
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 efficient administration of the
functions with which [he] is charged.” 42 U. S. C. §1302(a).
One such function—perhaps the most basic, given the De-
partment’s core mission—is to ensure that the healthcare
providers who care for Medicare and Medicaid patients pro-
tect their patients’ health and safety. Such providers in-
clude hospitals, nursing homes, ambulatory surgical cen-
ters, hospices, rehabilitation facilities, and more. To that
end, Congress authorized the Secretary to promulgate, as a
condition of a facility’s participation in the programs, such
“requirements as [he] finds necessary in the interest of the
health and safety of individuals who are furnished services
in the institution.” 42 U. S. C. §1395x(e)(9) (hospitals); see,
e.g., §§1395x(cc)(2)(J) (outpatient rehabilitation facilities),
1395i–3(d)(4)(B) (skilled nursing facilities), 1395k(a)(2)(F)
(i) (ambulatory surgical centers); see also §§1396r(d)(4)(B),
1396d(l)(1), 1396d(o) (corresponding provisions in Medicaid
Act).
Relying on these authorities, the Secretary has estab-
lished long lists of detailed conditions with which facilities
must comply to be eligible to receive Medicare and Medicaid
funds. See, e.g., 42 CFR pt. 482 (2020) (hospitals); 42 CFR
pt. 483 (long-term care facilities); 42 CFR §§416.25–416.54
(ambulatory surgical centers). Such conditions have long
included a requirement that certain providers maintain
and enforce an “infection prevention and control program
designed . . . to help prevent the development and transmis-
sion of communicable diseases and infections.” §483.80
Cite as: 595 U. S. ____ (2022) 3
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granted.
The District Court for the Eastern District of Missouri’s
November 29, 2021, order granting a preliminary injunc-
tion is stayed pending disposition of the Government’s ap-
peal in the United States Court of Appeals for the Eighth
Circuit and the disposition of the Government’s petition for
a writ of certiorari, if such writ is timely sought. Should the
petition for a writ of certiorari be denied, this order shall
terminate automatically. In the event the petition for a
writ of certiorari is granted, the order shall terminate upon
the sending down of the judgment of this Court.
The District Court for the Western District of Louisiana’s
November 30, 2021, order granting a preliminary injunc-
tion is stayed pending disposition of the Government’s ap-
peal in the United States Court of Appeals for the Fifth Cir-
cuit and the disposition of the Government’s petition for a
writ of certiorari, if such writ is timely sought. Should the
petition for a writ of certiorari be denied, this order shall
terminate automatically. In the event the petition for a
writ of certiorari is granted, the order shall terminate upon
the sending down of the judgment of this Court.
It is so ordered.
Cite as: 595 U. S. ____ (2022) 1
* * *
These cases are not about the efficacy or importance of
COVID–19 vaccines. They are only about whether CMS
has the statutory authority to force healthcare workers, by
coercing their employers, to undergo a medical procedure
they do not want and cannot undo. Because the Govern-
ment has not made a strong showing that Congress gave
CMS that broad authority, I would deny the stays pending
appeal. I respectfully dissent.
Cite as: 595 U. S. ____ (2022) 1
CMS argues that its delay, “even if true,” does not provide
a “reason to block a rule” that it claims will protect patient
health. Application in No. 21A241, p. 36. It claims that its
departure from ordinary procedure after extraordinary de-
lay should be excused because nobody can show they were
prejudiced by the lack of a comment period before the rule
took effect. But it is CMS’s affirmative burden to show it
has good cause, not respondents’ burden to prove the nega-
tive. Northern Arapahoe Tribe v. Hodel, 808 F. 2d 741, 751
(CA10 1987). Congress placed procedural safeguards on ex-
ecutive rulemaking so agencies would consider “important
aspect[s] of the problem[s]” they seek to address before re-
stricting the liberty of the people they regulate. State
Farm, 463 U. S., at 43. Because CMS chose to circumvent
notice-and-comment, States that run Medicaid facilities, as
well as other regulated parties, had no opportunity to pre-
sent evidence refuting or contradicting CMS’s justifications
before the rule bound them. And because CMS acknowl-
edged its own “uncertainty” and the “rapidly changing na-
ture of the current pandemic,” 86 Fed. Reg. 61589, it should
have been more receptive to feedback, not less. “[A]n utter
failure to comply with notice and comment cannot be con-
sidered harmless if there is any uncertainty at all as to the
effect of that failure.” Sugar Cane Growers Cooperative of
Florida v. Veneman, 289 F. 3d 89, 96 (CADC 2002).
Today’s decision will ripple through administrative agen-
cies’ future decisionmaking. The Executive Branch already
touches nearly every aspect of Americans’ lives. In conclud-
ing that CMS had good cause to avoid notice-and-comment
rulemaking, the Court shifts the presumption against com-
pliance with procedural strictures from the unelected
agency to the people they regulate. Neither CMS nor the
Court articulates a limiting principle for why, after an un-
explained and unjustified delay, an agency can regulate
first and listen later, and then put more than 10 million
Cite as: 595 U. S. ____ (2022) 5