Biden, et al. v. Missouri, et al., No. 21A240.

Secretary of the Department of Health and Human Services, et al. v. Louisiana, et al., No. 21A241.

Order and Opinion issued January 13, 2021.


The United States Supreme Court has granted the relief from stays entered in two United States District Courts enjoining the effectiveness of a Centers for Medicare and Medicaid Services (CMS) rule requiring Covid-19 vaccination of staff of facilities and providers receiving or participating in Medicare of Medicaid programs.

The Department of Health and Human Services (HHS), Centers for Medicare and Medicaid Services (CMS), administers Medicare insurance for the elderly and Medicaid insurance for low income persons.

A core feature of both programs, the Supreme Court has observed, is that participation in those programs is contingent upon compliance with HHS patient health and safety regulations.

Medicare and Medicaid regulation is extensive and longstanding and include measures to guard against transmission of infectious diseases, the Court has found.

In November, 2021, HHS added Covid-19 staff vaccine compliance to regulations governing those receiving federal reimbursement or funding (“covered” facilities or entities), attaching penalties for failure to comply as well as potential termination of participation in federal financing.

In demanding that all persons working in covered facilities be vaccinated, the Secretary of HHS made findings concerning viral contagion and the likelihood that contagion would be inhibited by requiring vaccination.

In addition, the Secretary found that fear of contracting Covid-19 has inhibited people from seeking needed health care.

The Covid-19 vaccine mandate was promulgated as Interim Final Rule without notice and comment.

The Supreme Court has concluded that the Secretary of Health and Human Services has the authority to condition receipt of federal funding upon compliance with health and safety regulations.

Although the Covid-19 vaccine mandate for healthcare workers goes farther than other healthcare health and safety requirements, vaccination as a condition of employment is routine.  As vaccination is ordinarily administered by the states, prior to the Covid-19 pandemic there has been no need for the federal government to step in to the process.

The Supreme Court rejected arguments that the Secretary failed to consider alternatives to vaccination or to support departure from previous ‘encouragement’ — but not requirement — of vaccination.

Even if the Secretary’s considerations and findings could be seen to be flawed, the Supreme Court observed, courts are not to disturb the Secretary’s determinations as arbitrary and capricious where the Secretary has proceeded “within a zone of reasonableness.”  Slip op. (per curiam) at 8 (citation omitted).

Objections to the Secretary’s excusing notice and comment are ill founded, the Court opined, because the arrival of the “flu season” has sufficient specificity to justify haste in implementing the Covid-19 vaccine rule  The Court found it unnecessary for HHS to confer with the states or to develop impact assessments before enacting its rule.

Finally, the vaccine mandate does not prohibit HHS involvement in the supervision or control of participants’ provision of services or the termination of employees, the Court concluded.  If the reading urged were adopted, almost all prior conditions of participation would fail.

A federal agency cannot act outside the power conferred upon it in an emergency, the Court reiterated.  This does not mean, however, that an agency is precluded from exercising authority that the agency has long been recognized to possess when  emergency conditions exist.

We disagree. Justices Thomas, Alito, Gorsuch and Barrett dissent.  The dissenting justices have been unable to locate within the provisions cited by the government the authority to require an estimated ten million workers to submit to an irreversible medical procedure.  Rule-making powers that may be exercised for the administration of Medicare and Medicaid programs have not been shown to have a nexus with vaccination.  Adding to such general management authorities scattered references to ‘health and safety’ in order local such a nexus fares no better.

Bits of this and that. The ‘hodgepodge’ approach, as the dissent characterizes the majority’s analysis,  is not sufficient to support the majority’s finding that authorization for the Covid-19 mandate for healthcare workers exists.  References to health and safety measures found here and there will not suffice to support the kind of global regulatory power exercised here, nor can authority for exercise of such power be implied through ‘catchall’ language referring to undefined “other requirements” relating to health and safety.

Residual authority cannot be creatively implied, for it is a basic rule of statutory construction that where specific terms precede general terms, the general terms must consider matters similar to the specific terms.

General administrative requirements such as the provision of 24-hour services or record keeping cannot support a finding of authority for vaccination of all healthcare workers associated with covered facilities.

The one regulation that the dissent concedes might be relevant concerns infection control in long term care facilities but this relates to general sanitation, not vaccination.

The majority’s reliance on general regulatory powers granted to CMS does not provide evidence that authority to require healthcare employee vaccination exists.  The existence of some regulations does not support the majority’s finding that authority to issue the regulations in issue here has been granted.  Even the infectious disease control provisions concern sterilization and housekeeping and discuss vaccination only in the context of patient request for and consent to vaccination, and have nothing to do with the requirement imposed on employees through the Covid-19 rule.

Success in the Future is not Certain. The dissenting justices are of the opinion that the government applicants for relief from the federal district court stays have failed to demonstrate a strong likelihood of success on the merits, for in such vast measures as are in issue here, Congress must speak clearly, and nothing provided to the Court thus far shows that Congress has done so.

We disagree all the more. Justice Alito, joined by Justices Thomas, Gorsuch and Barrett, has provided a separate dissent.  Justice Alito opines that it is not likely that the federal government wil be able to show that there exists Congressional authorization to the Secretary to command that ten million workers submit to vaccination or lose their jobs.

The regulatory “hodgepodge” and scattered provisions as authorization was not forcefully argued by the government until its reply brief.  Stronger medicine than this is needed to cure the absence of any direct evidence to support legislative delegation to HHS to compel employee vaccinations.

Even if vaccination could be perceived to be authorized, the way in which HHS has conducted itself is fatally defective.  Administrative notice and comment, which is essential to ensuring public participation in rule-making, and which guards against lawmaking by unelected officials, has been undermined here.

Justice Alito, while recognizing that the majority has recognized only a likely hood of success on the merits, fears that the scope of the majority’s conclusions is dangerously broad.  The expansive view of regulatory powers embraced by the majority undermines fundamental principles of administrative law.  This in turn may induce extensive changes in executive branch behavior.

No good cause, no excuse. “Good cause” is necessary to excuse compliance with notice and comment provisions.  While no fixed standards supporting foregoing notice and comment exist, conditions excusing notice and comment require narrow construction.

The rationale for failing to comply with notice and commend procedures offered by the government fails to define what harm would ensue from the delay caused by notice and comment.  The ‘importance of vaccination’ will not in itself, define the harm to be avoided by suspending notice and comment.  It is not credible for HHS to argue that exigency excusing notice and comment exists where vaccines had already been in existence for ten months prior to the rule and millions of workers had been vaccinated by the time the CMS mandated issued.

No harm, yet still foul. CMS’ claim that no one was prejudiced by the failure to adhere to notice and comment  procedures obscures the fact that CMS must demonstrate good cause for doing so.  No requirement exists that respondents demonstrate a lack of good cause.  “No harm done” casts a backward glance that does not provide the good cause needed before suspending notice and comment.

Skipping the essentials bodes ill.  Notice and comment procedures are legislative limits on executive authority intended to ensure that executive agencies consider what they are doing “before restricting the liberty of the people they regulate”.  Alito dissent, slip op at 4.  (citation omitted). The majority’s adoption of CMS’ position endorses a regulate first, then listen approach which is especially dangerous where ten million workers must undergo an irreversible medical treatment or lose their jobs.

Biden v. Missouri, No. 21A240 and Becerra v. Louisiana, No. 21241. Order and Opinion January 13, 2022 (S.Ct.)

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