Amicus Brief of SEIU, AFT, and AFSCME — Biden v. Missouri

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A motion for leave to file and an amicus brief of the Service Employees International Union, the American Federation of Teachers, and the American Federation of State, County, and Municipal Employees in support of the applicants, dated December 22, 2021 in No. 21A-240 in the Supreme Court. The matter is an application by President Joseph R. Biden, Jr. and other federal applicants for a stay of a preliminary injunction of the U.S. District Court for the Eastern District of Missouri. The motion asks leave to file without 10 days' advance notice and states that respondents do not oppose the filing. The brief describes the amici's healthcare membership, reports that more than 3,600 healthcare workers died during the first year of the pandemic, and argues that the Center for Medicare and Medicaid Services rule at 86 Fed. Reg. 61,555-01 is within the agency's statutory authority.

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Mosaic - (301) 927-3800 - Cheverly, MD
 
 
No. 21A-240 
In the Supreme Court of the United States 
 
JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED STATES, 
ET AL., 
 
APPLICANTS, 
 
v. 
 
STATE OF MISSOURI, ET AL. 
 
On Application for A Stay of the Injunction Issued by the 
United States District Court for the Eastern District of 
Missouri Pending Appeal to the United States Court of 
Appeals for the Eighth Circuit and Further Proceedings 
in this Court  
 
MOTION FOR LEAVE TO FILE AND BRIEF OF 
SERVICE EMPLOYEES INTERNATIONAL UNION, 
AMERICAN FEDERATION OF TEACHERS, AND 
AMERICAN FEDERATION OF STATE, COUNTY, 
AND MUNICIPAL EMPLOYEES AS AMICI CURIAE 
IN SUPPORT OF APPLICANTS 
  
NICOLE G. BERNER 
CLAIRE PRESTEL 
RENEE M. GERNI 
SERVICE EMPLOYEES    
  INTERNATIONAL UNION 
1800 Massachusetts Ave. N.W. 
Washington, DC 20036 
Attorneys for Amicus Curiae 
SEIU 
BARBARA J. CHISHOLM 
   Counsel of Record 
JONATHAN ROSENTHAL 
ALTSHULER BERZON LLP 
177 Post St., Ste. 300 
San Francisco, CA 94108 
(415) 421-7151 
bchisholm@altber.com 
Attorneys for Amici Curiae 

DAVID J. STROM  
DANIEL J. MCNEIL 
AMERICAN FEDERATION
OF TEACHERS  
555 New Jersey Ave. 
N.W.  
Washington, DC 20001 
Attorneys for Amicus 
Curiae AFT  
JUDITH E. RIVLIN 
TEAGUE P. PATERSON 
KYLE C. CAMPBELL 
AMERICAN FEDERATION
OF STATE, COUNTY, AND
MUNICIPAL EMPLOYEES 
1625 L Street NW 
Washington, D.C. 20036 
Attorneys for Amicus 
Curiae AFSCME 

i 
MOTION FOR LEAVE TO FILE 
Proposed amici curiae Service Employees 
International Union (SEIU) et al. respectfully move 
for leave to file a brief in support of the federal 
government and its stay application and to file the 
enclosed brief without 10 days’ advance notice to the 
parties of amici’s intent to file. See Sup. Ct. R. 37.2(a). 
Respondents do not oppose the filing of this brief, and 
the federal applicants take no position on it.1 
INTERESTS OF MOVANTS 
SEIU is a labor organization representing 
approximately two million working men and women 
in the United States, Canada, and Puerto Rico. SEIU 
represents hundreds of thousands of healthcare 
workers, and has advocated since the beginning of the 
Covid-19 pandemic for safe working conditions that 
allow SEIU members to deliver quality care to their 
patients. The preliminary injunction issued by the 
district court, by preventing implementation of a 
Medicaid and Medicare participation requirement 
designed to protect patients in advance of the winter 
surge of Covid-19 cases, endangers healthcare 
workers in hospitals, skilled nursing facilities, clinics, 
and other health facilities throughout the country. 
The American Federation of Teachers (AFT), an 
affiliate of the AFL-CIO, was founded in 1916. The 
AFT represents 200,000 healthcare workers, as well 
as other essential frontline workers in public services, 
1 No counsel for any party authored this amicus brief in 
whole or in part, and no person or entity other than amici curiae, 
its members, or its counsel made a monetary contribution 
intended to fund the brief’s preparation or submission.  Sup. Ct. 
R. 37.6.

ii 
 
K-12 education and higher education, totaling 1.7 
million members who have worked tirelessly during 
the Covid-19 pandemic. Healthcare workers and the 
patients 
they 
serve 
are 
endangered 
by 
the 
preliminary injunction issued by the district court, 
which prevents implementation of a vaccine mandate 
for staff of participants in the Medicaid and Medicare 
programs. 
The American Federation of State, County and 
Municipal Employees, AFL-CIO (AFSCME) is a labor 
organization of 1.3 million working people who 
provide vital public services around the nation. 
AFSCME represents workers across the full range of 
healthcare occupations, including nurses, doctors, 
EMTs, therapists, CNAs and more, in all types of 
medical, nursing, mental and behavioral health 
facilities and centers, many of which participate in 
the Medicaid and Medicare programs. AFSCME 
members have been on the front lines of the Covid-19 
pandemic, and the district court’s preliminary 
injunction needlessly jeopardizes its members’ safety.  
Proposed amici have a strong interest in the 
outcome of this litigation and respectfully submit that 
their perspective will aid this Court’s deliberations.   
Given the expedited consideration of this matter of 
urgent and national concern, proposed amici also 
respectfully request leave to file the enclosed brief 
without 10 days’ advance notice to the parties of 
intent to file.  The court of appeals denied the federal 
government’s emergency motion for a stay on 
December 13, 2021.  The application to this Court for 
a stay was filed on December 16, 2021. On December 
17, 2021, the Court set a deadline of 4 p.m. on 
December 30, 2021, for Respondents’ brief.   

iii 
Further, in light of the expedited nature of this 
matter, proposed amici are providing electronic page 
proofs of this motion and attached brief to counsel for 
the parties on December 21, with printed booklets to 
follow via overnight mail on December 22, 2021.  
For the foregoing reasons, SEIU et al. respectfully 
request that the Court grant leave to file the enclosed 
brief in support of the stay application. 
Dated: December 22, 2021 Respectfully submitted, 
NICOLE G. BERNER 
CLAIRE PRESTEL 
RENEE M. GERNI 
SERVICE EMPLOYEES
INTERNATIONAL UNION 
1800 Massachusetts 
Ave. N.W. 
Washington, DC 20036 
Attorneys for Amicus 
Curiae SEIU 
/s/ Barbara J. Chisholm 
BARBARA J. CHISHOLM 
   Counsel of Record 
JONATHAN ROSENTHAL 
ALTSHULER BERZON LLP 
177 Post Street, Ste. 300 
San Francisco, CA 94108 
(415) 421-7151
bchisholm@altber.com
Attorneys for Amici Curiae
DAVID J. STROM  
DANIEL J. MCNEIL 
AMERICAN FEDERATION
OF TEACHERS  
555 New Jersey Ave. 
N.W.  
Washington, DC 20001 
Attorneys for Amicus 
Curiae AFT  
JUDITH E. RIVLIN 
TEAGUE P. PATERSON 
KYLE C. CAMPBELL 
AMERICAN FEDERATION
OF STATE, COUNTY, AND
MUNICIPAL EMPLOYEES 
1625 L Street NW 
Washington, D.C. 20036 
Attorneys for Amicus 
Curiae AFSCME 


v 
TABLE OF CONTENTS 
TABLE OF AUTHORITIES ................................... vii 
INTERESTS OF AMICI CURIAE ............................. 1 
INTRODUCTION ...................................................... 2 
ARGUMENT .............................................................. 3 
I. The Rule Protects Workers As Well As
Patients .............................................................. 3 
A. Under-Vaccination Poses Severe Risks
To Healthcare Workers ...................................... 3 
B. Frontline Healthcare Workers Support
The Rule. ............................................................ 6 
II. The Rule is Well Within CMS’s Authority. .......... 7 
A. The Statutory Text Is Clear .......................... 7 
B. This Court’s Major Questions
Precedents Do Not Apply ................................. 12 
CONCLUSION ......................................................... 18 


vii 
TABLE OF AUTHORITIES 
Page(s) 
Cases 
Alabama Ass’n of Realtors v. Dep’t of Health 
& Hum. Servs., 
141 S. Ct. 2485 (2021) .................................... 13, 16 
Alexander v. Sandoval, 
532 U.S. 275 (2001) .............................................. 12 
Ali v. Fed. Bureau of Prisons, 
552 U.S. 214 (2008) .............................................. 16 
Azar v. Allina Health Servs., 
139 S. Ct. 1804 (2019) .......................................... 16 
Diamond v. Chakrabarty, 
447 U.S. 303 (1980) .............................................. 17 
FDA v. Brown & Williamson Tobacco Corp., 
529 U.S. 120 (2000) .............................................. 13 
Gonzales v. Oregon, 
546 U.S. 243 (2006) .............................................. 17 
Hardt v. Reliance Standard Life Ins. Co., 
560 U.S. 242 (2010) .............................................. 10 
Harris Tr. & Sav. Bank v. Salomon Smith 
Barney, Inc., 
530 U.S. 238 (2000) .............................................. 12 
King v. Burwell, 
576 U.S. 473 (2015) .............................................. 13 

viii 
Lewis v. City of Chicago, Ill., 
560 U.S. 205 (2010) .............................................. 15 
Little Sisters of the Poor Saints Peter and 
Paul Home v. Pennsylvania, 
140 S. Ct. 2367 (2020) .................................... 17, 18 
Mourning v. Fam. Publications Serv., Inc., 
411 U.S. 356 (1973) .............................................. 17 
Rasulis v. Weinberger, 
502 F.2d 1006 (7th Cir. 1974) ................................8 
Ross v. Blake, 
578 U.S. 632 (2016) .............................................. 12 
Sabri v. United States, 
541 U.S. 600 (2004) .............................................. 16 
United States Forest Serv. v. Cowpasture 
River Pres. Ass’n, 
140 S. Ct. 1837 (2020) .......................................... 13 
Utility Air Regulatory Group v. EPA, 
573 U.S. 302 (2014) ............................ 13, 14, 16, 17 
Watt v. Energy Action Educ. Found., 
454 U.S. 151 (1981) .............................................. 15 
Yates v. United States, 
574 U.S. 528 (2015) .............................................. 17 
Statutes 
42 U.S.C. § 1302 .................................................... 8, 10 
42 U.S.C. § 1395bbb ....................................................9 

ix 
42 U.S.C. § 1395eee .....................................................9 
42 U.S.C. § 1395d .................................................... 8, 9 
42 U.S.C. § 1395hh ......................................................8 
42 U.S.C. § 1395i-3 ................................................ 9, 11 
42 U.S.C. § 1395i-4 ......................................................9 
42 U.S.C. § 1395x ........................................ 8, 9, 10, 11 
42 U.S.C. § 1395rr ..................................................... 10 
42 U.S.C. § 1395k ...................................................... 10 
42 U.S.C. § 1396d ........................................................9 
42 U.S.C. § 1395r ........................................................9 
42 U.S.C. § 1396u-4 .....................................................9 
Regulations 
42 C.F.R. § 482.42 ..................................................... 14 
51 Fed. Reg. 22,010-01 (1986) ................................... 14 
86 Fed. Reg. 61,555-01 (Nov. 5, 2021) ........ 2, 8, 10, 13 
Other Authorities 
Aaron Richterman et al., Hospital-Acquired 
SARS-CoV-2 Infection: Lessons for 
Public Health, JAMA (Nov. 13, 2020), 
https://jamanetwork.com/journals/jama/f
ullarticle/2773128 ..................................................4 

x 
Alyson M. Cavanaugh et al., COVID-19 
Outbreak Associated with a SARS-CoV-2 
R.1 Lineage Variant in a Skilled
Nursing Facility After Vaccination
Program — Kentucky, March 2021 (Apr.
21, 2021), https://
www.cdc.gov/mmwr/volumes/70/wr/mm7
017e2.htm?s_cid=mm7017e2_w ............................5 
Jessica Ibiebele et al., Occupational 
COVID-19 exposures and secondary 
cases among healthcare personnel, Am. 
J. of Infection Control (Aug. 8, 2021),
https://www.ncbi.nlm.nih.gov/pmc/articl
es/PMC8349432/ ....................................................4 
Eric C. Schneider et al., The U.S. COVID-
19 Vaccination Program at One Year: 
How Many Deaths and Hospitalizations 
Were Averted?, The Commonwealth 
Fund (Dec. 14, 2021), 
https://www.commonwealthfund.org/pub
lications/issue-briefs/2021/dec/us-covid-
19-vaccination-program-one-year-how-
many-deaths-and ............................................... 5, 6 
Lost on the frontline: Thousands of US 
healthcare workers died fighting Covid-
19. We counted them and investigated
why, The Guardian (Apr. 8, 2021),
https://www.theguardian.com/us-
news/ng-interactive/2020/aug/11/lost-on-
the-frontline-covid-19-coronavirus-us-
healthcare-workers-deaths-database. ...................3 

xi 
Our key findings about US healthcare worker 
deaths in the 
pandemic’s first year, The Guardian (Apr.
 8, 2021), 
https://www.theguardian.com/us-news/ng-
interactive/2020/dec/22/lost-on-the-
frontline-our-findings-to-date. ........................... 3, 4 
Brenda Goodman and Andy Miller, A 
Disturbing Number of Hospital Workers 
Still Unvaccinated, GPB News (June 29, 
2021), https://www.gpb.org/news/2021/0
6/29/disturbing-number-of-hospital-
workers-still-unvaccinated ....................................4 
Long H. Nguyen et al., Risk of COVID-19 
among frontline healthcare worker and 
the general community; a prospective 
cohort study, medRxiv (May 25, 2020), 
https://www.ncbi.nlm.nih.gov/pmc/articl
es/PMC7273299/. ...................................................3 
Roni Caryn Rabin, An unvaccinated worker set 
off an outbreak at a U.S. nursing home where 
most residents were 
immunized, New York Times (Apr. 21, 2021), 
https://www.nytimes.com/2021/04/21/health/
vaccine-nursing-homes-infections.html ................5 


1 
INTERESTS OF AMICI CURIAE 
Service Employees International Union (SEIU) is 
a labor organization representing approximately two 
million working men and women in the United States, 
Canada, and Puerto Rico.  SEIU represents hundreds 
of thousands of healthcare workers, and has 
advocated since the beginning of the Covid-19 
pandemic for safe working conditions that allow SEIU 
members to deliver medical care to their patients.  
The preliminary injunction issued by the district 
court, by preventing implementation of a Medicaid 
and Medicare participation requirement designed to 
protect patients in advance of the winter surge of 
Covid-19 cases, endangers healthcare workers in 
hospitals, skilled nursing facilities, clinics, and other 
health facilities throughout the country.     
The American Federation of Teachers (AFT), an 
affiliate of the AFL-CIO, was founded in 1916. The 
AFT represents 200,000 healthcare workers, as well 
as other essential frontline workers in public services, 
K-12 education and higher education, totaling 1.7
million members who have worked tirelessly during
the Covid-19 pandemic. Healthcare workers and the
patients 
they 
serve 
are 
endangered 
by 
the
preliminary injunction issued by the district court,
which prevents implementation of a vaccine mandate
for staff of participants in the Medicaid and Medicare
programs.

2 
The American Federation of State, County and 
Municipal Employees, AFL-CIO (AFSCME) is a labor 
organization of 1.3 million working people who 
provide vital public services around the nation. 
AFSCME represents workers across the full range of 
healthcare occupations, including nurses, doctors, 
EMTs, therapists, CNAs and more, in all types of 
medical, nursing, mental and behavioral health 
facilities and centers, many of which participate in 
the Medicaid and Medicare programs. AFSCME 
members have been on the front lines of the Covid-19 
pandemic, and the district court’s preliminary 
injunction needlessly jeopardizes its members’ safety. 
Amici have a strong interest in the outcome of this 
litigation 
and 
respectfully 
submit 
that 
their 
perspective will aid this Court’s deliberations.  
INTRODUCTION 
Amici submit this brief to highlight the real-life 
experiences of healthcare workers on the frontlines of 
the Covid-19 pandemic who have experienced the 
dangers of under-vaccination firsthand and who 
strongly support vaccination for staff members at 
healthcare facilities. Amici also underscore the 
importance of respecting the statutory authority 
vested in the Center for Medicare and Medicaid 
Services (CMS) to promulgate a Rule that protects the 
health and safety of Medicare and Medicaid patients. 
See Medicare and Medicaid Programs; Omnibus 
COVID–19 Health Care Staff Vaccination, 86 Fed. 
Reg. 61,555-01 (Nov. 5, 2021). The district court 
injunction 
substitutes 
that 
court’s 
views 
on 
epidemiology for the considered and reasoned 
judgment of CMS, the very agency Congress charged 
with establishing minimum necessary requirements 

3 
to ensure the health and safety of individuals who 
receive health services at facilities participating in 
the federal Medicare and Medicaid programs. 
ARGUMENT 
1. The Rule Protects Workers As Well As 
Patients. 
A. Under-Vaccination Poses Severe Risks to 
Healthcare Workers. 
The 
Covid-19 
pandemic 
has 
placed 
an 
unprecedented strain on the healthcare industry, and 
on healthcare workers in particular. It has been 
understood since the early months of the pandemic 
that healthcare workers face heightened risk of 
contracting 
Covid-19 
relative 
to 
the 
general 
population.2 More than 3,600 healthcare workers in 
the U.S. died during the first year of the pandemic.3 
More than half of those workers were younger than 
60 years old; more than half were people of color; more 
than half worked in healthcare facilities other than 
hospitals; and the highest number of those who died 
were nurses and healthcare support staff, many of 
whom are lower-paid relative to other medical staff.4  
 
2 Long H. Nguyen et al., Risk of COVID-19 among frontline 
healthcare worker and the general community; a prospective 
cohort study, medRxiv, (May 25, 2020), 
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7273299/. 
3 Lost on the frontline: Thousands of US healthcare workers 
died fighting Covid-19. We counted them and investigated why, 
The Guardian (Apr. 8, 2021), https://www.theguardian.com/us-
news/ng-interactive/2020/aug/11/lost-on-the-frontline-covid-19-
coronavirus-us-healthcare-workers-deaths-database.  
4 Our key findings about US healthcare worker deaths in the 
pandemic’s first year, The Guardian (Apr. 8, 2021), 
https://www.theguardian.com/us-news/ng-
Footnote continued on next page 

4 
Many of the risks to healthcare workers come 
from lax policies that fail to adequately protect both 
workers and patients, and the greatest transmission 
risks in hospitals often come from workers in facilities 
without sufficient enforcement of safety protocols.5 
This is true even where universal masking policies 
have been implemented. For example, at one provider 
in North Carolina, “unmasked exposure to another 
health care worker rather than exposure to known 
infected patients resulted in the most [Covid-19] cases 
among staff after implementation of universal 
masking.”6 Recent research has similarly suggested 
that healthcare workers are more likely to contract 
Covid-19 from co-workers than from patients.7 
In the more recent months of the pandemic, 
outbreaks have often been tied to under-vaccination 
among healthcare workers. This past summer, during 
an outbreak at a Maine hospital, four of the first five 
staff members to test positive had not been fully 
vaccinated.8 And at a nursing home in Kentucky, 26 
 
interactive/2020/dec/22/lost-on-the-frontline-our-findings-to-
date.  
5 Aaron Richterman et al., Hospital-Acquired SARS-CoV-2 
Infection: Lessons for Public Health, JAMA (Nov. 13, 2020), 
https://jamanetwork.com/journals/jama/fullarticle/2773128). 
6 Id. (quoting Sonali Advani et al., Are we forgetting the 
“universal” in universal masking? current challenges and future 
solutions, Infection Control & Hospital Epidemiology (July 16, 
2020)). 
7 Jessica Ibiebele et al., Occupational COVID-19 exposures 
and secondary cases among healthcare personnel, Am. J. of 
Infection Control (Aug. 8, 2021), 
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8349432/. 
8 Brenda Goodman and Andy Miller, A Disturbing Number 
of Hospital Workers Still Unvaccinated, GPB News (June 29, 
2021), https://www.gpb.org/news/2021/06/29/disturbing-
number-of-hospital-workers-still-unvaccinated.  

5 
patients and 20 healthcare workers were infected in 
an outbreak set off by a single unvaccinated worker.9  
As one group of researchers put it, “[t]o protect 
[nursing home] residents, it is imperative that 
[healthcare workers], as well as . . . residents, be 
vaccinated.”10 
Covid-19 vaccines are extraordinarily effective. 
One study estimated that the U.S.’s vaccination 
program had prevented more than 10.3 million 
hospitalizations, and more than 1.1 million additional 
deaths by November 2021.11 Without vaccines, daily 
deaths could have jumped to as high as 21,000 per 
day—more than 5.2 times the level of the record 
peak.12 As of October 2021, rates of hospitalization 
among unvaccinated adults were nearly 12 times the 
rates for fully vaccinated adults.13 Nonetheless, as the 
study’s authors noted, “[e]ven the 2.6 million COVID-
related hospitalizations that occurred during 2021 
 
9 Roni Caryn Rabin, An unvaccinated worker set off an 
outbreak at a U.S. nursing home where most residents were 
immunized, 
New 
York 
Times 
(Apr. 
21, 
2021), 
https://www.nytimes.com/2021/04/21/health/vaccine-nursing-
homes-infections.html.  
10 Alyson M. Cavanaugh et al., COVID-19 Outbreak 
Associated with a SARS-CoV-2 R.1 Lineage Variant in a Skilled 
Nursing Facility After Vaccination Program — Kentucky, March 
2021 (Apr. 21, 2021), 
https://www.cdc.gov/mmwr/volumes/70/wr/mm7017e2.htm?s_ci
d=mm7017e2_w.  
11 Eric C. Schneider et al., The U.S. COVID-19 Vaccination 
Program at One Year: How Many Deaths and Hospitalizations 
Were Averted?, The Commonwealth Fund (Dec. 14, 2021), 
https://www.commonwealthfund.org/publications/issue-
briefs/2021/dec/us-covid-19-vaccination-program-one-year-how-
many-deaths-and.  
12 Id. 
13 Id. 

6 
placed an enormous strain on hospitals, with many 
staff lost not only to the virus but also to exhaustion 
and burnout.”14 The study concluded that “[a]s the 
Omicron variant begins to spread and the Delta 
variant 
surge 
continues,” 
vaccination 
has 
“tremendous power . . . to reduce disease and death 
from COVID-19.”15 
B. Frontline Healthcare Workers Support the 
Rule. 
Toni, an SEIU 1199NE New England union 
member, has been a Certified Nurse’s Aide at St. 
Joseph’s Center, a Medicare- and Medicaid-certified 
facility in Trumbull, Connecticut, for thirty-one years. 
She recalls that before Covid-19 vaccines were 
available, her facility faced terrible conditions—the 
virus “hit [her] floor drastically,” and dozens of 
residents died from Covid-19. The staff were not safe: 
Toni herself was one of the first people to contract 
Covid-19, and then many other employees also got 
sick. Tragically, some staff members carried Covid-19 
home to their families, and some family members died 
from the virus. For Toni, the lack of vaccines during 
that difficult time meant that she had to go months at 
a time without seeing her children and grandchildren, 
for fear of spreading the virus. 
Toni strongly supports requiring healthcare 
staff to be vaccinated. She explains that relying solely 
on personal protective equipment is dangerous 
because it is a strain, hard to wear, and does not 
provide complete protection. After Connecticut set 
vaccine requirements for long-term care facilities, 
100% of her co-workers are now vaccinated. Toni says 
 
14 Id. 
15 Id. 

7 
requiring vaccination is a “no-brainer,” because she 
has seen the terrible effects of under-vaccination: 
“The proof was in the pudding: we saw people dying.”  
Sophia 
Colley, 
an 
SEIU 
1199 
United 
Healthcare Workers East union delegate and officer, 
has been a Certified Nursing Assistant at Titusville 
Rehab & Nursing Center, a Medicare- and Medicaid-
certified facility in Titusville, Florida, for more than 
thirty years. She explains that earlier in the 
pandemic, especially after the death of a staff member 
from Covid-19, many co-workers were “scared to come 
to work,” and many stayed away entirely out of fear 
of contracting Covid-19 at work and passing it on to 
their families. When vaccines became available, many 
staff members were still afraid. But as vaccination 
rates have risen at the facility, more and more 
workers have felt safe to return to work and care for 
their patients.  
In Sophia’s view, from working at her facility 
and speaking with other healthcare workers, vaccine 
mandates have an extremely important role to play—
alongside PPE policies, one-on-one conversations, 
encouragement, and education—in making skilled 
nursing facilities safe and effective in the face of an 
ongoing pandemic. As she says, getting vaccinated 
protects your co-workers as well as “the residents that 
you’re taking care of.” She is proud of her facility, 
where 98 percent of staff are now vaccinated. 
II. The Rule Is Well Within CMS’s Authority. 
A.  The Statutory Text Is Clear. 
The district court’s injunction is based on 
speculations about Congressional intent without any 
grounding in the actual, relevant statutory text. 
Indeed, the district court virtually ignores Congress’s 

8 
text 
in 
conducting 
its 
cursory 
statutory 
interpretation. But that text leaves no doubt that 
Congress granted CMS the authority to issue the 
Rule. 
With respect to both the Medicare and Medicaid 
programs, Congress has commanded the Secretary of 
Health and Human Services to “make and publish 
such rules and regulations . . . as may be necessary to 
the efficient administration of the functions with 
which [he] is charged[.]” 42 U.S.C. § 1302(a). 
Similarly, Congress requires the Secretary to 
“prescribe such regulations as may be necessary to 
carry out the administration of [Medicare] insurance 
programs[.]”  42 U.S.C. § 1395hh(a)(1). 
More specifically, Congress has instructed the 
Secretary to set health and safety standards for 
providers and suppliers who participate in the 
Medicare and Medicaid programs. For example, 
Congress has provided that any “hospital” that 
participates in the Medicare program must “meet[] 
such . . . requirements as the Secretary 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); see also id. 
§ 1395d(a); Rasulis v. Weinberger, 502 F.2d 1006, 
1010 (7th Cir. 1974) (noting that Congress has 
“explicitly empowered” the Secretary to establish 
health and safety standards to protect hospital 
patients).  
As carefully discussed in the Rule, see 86 Fed. 
Reg. at 61,567, 61,575–61,583, Congress has granted 
the Secretary this same or similar authority with 
respect to all of the participating providers included 
within the Rule’s scope. See 42 U.S.C. § 1395x(f)(2) 
(same 
authority 
for 
participating 
psychiatric 

9 
hospitals); 
id. 
§§ 1395x(o), 
1395bbb(b) 
(same 
authority for participating home health agencies); id. 
§ 1395x(p)(4)(A)(v) (same authority for participating 
clinics 
and 
rehabilitation 
agencies 
providing 
outpatient physical therapy); id. § 1395x(aa)(2)(k) 
(same authority for participating rural health clinics); 
id. 
§ 1395x(dd)(2)(G) 
(same 
authority 
for 
participating 
hospice 
programs); 
id. 
§ 1395x(ff)(3)(B)(iv) (same authority for participating 
community mental health centers); id. § 1395eee(f)(4) 
(same authority for participating programs of all-
inclusive care for the elderly); id. § 1395x(cc)(2)(J) 
(same authority for participating comprehensive 
outpatient rehabilitation facilities, including express 
authority to set health and safety standards 
“concerning qualifications of personnel in these 
facilities”); id. § 1395i-3(d)(4)(B), (f)(1) (authority to 
set standards relating to the “health, safety, and well-
being of residents” for participating long-term care 
(skilled nursing) facilities); id. § 1396d(h)(1)(A) (same 
authority 
for 
certain 
psychiatric 
residential 
treatment facilities participating in Medicaid); id. 
§ 1396d(l) (same authority for rural health clinics 
participating in Medicaid); id. § 1396d(o) (same 
authority for hospice programs participating in 
Medicaid); id. § 1396r(d)(4)(B) (same authority for 
nursing facilities participating in Medicaid); id. 
§ 1396u-4(f)(4) (same authority for programs of all-
inclusive care for the elderly participating in 
Medicaid); 
id. 
§ 1396d(d)(1) 
(authority 
to 
set 
standards 
for 
participating 
intermediate 
care 
facilities for individual with intellectual disabilities); 
id. § 1395i-4(e)(3) (authority to set criteria for 
participating 
critical 
access 
hospitals); 
id. 
§ 1395x(iii)(3)(D)(i)(IV) (authority to set requirements 
for participating home infusion therapy suppliers); id. 

10 
§ 1395rr(b)(1)(A) (authority to set requirements for 
participating end-stage renal disease facilities); id. 
§ 1395k(a)(2)(F)(i) (authority to specify “health, 
safety, and other standards” for participating 
ambulatory surgical centers). 
Certainly, statutory provisions allowing the 
Secretary to establish health and safety requirements 
for participating facilities authorize this Rule. See 
Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 
242, 251 (2010) (“We must enforce plain and 
unambiguous statutory language according to its 
terms.”). CMS explained at great length in the Rule 
why requiring staff working for Medicare and 
Medicaid providers to be vaccinated against Covid-19 
is both “necessary to the efficient administration” of 
these programs, see 42 U.S.C. § 1302(a), and, more 
specifically, “necessary in the interest of the health 
and safety of individuals” receiving Medicare and 
Medicaid services from these providers, see, e.g., id. 
§ 1395x(e)(9). CMS reviewed evidence demonstrating 
that requiring staff vaccination is critical to 
protecting Medicare and Medicaid recipients, because 
“[f]ewer infected staff and lower transmissibility 
equates to fewer opportunities for transmission to 
patients[.]” 86 Fed. Reg. at 61,558. For example, CMS 
discussed data showing that “residents of [long-term 
care] facilities in which vaccination coverage of staff 
is 75 percent or lower experience higher rates of 
preventable COVID-19.” Id. And beyond avoidable 
Covid-19 transmission from unvaccinated staff, CMS 
identified many other risks to patient health and 
safety that warranted implementation of the Rule, 
including reports that fear of infection from 
unvaccinated staff leads patients to forgo seeking 
medically necessary care, and evidence that “illnesses 
and 
deaths 
associated 
with 
COVID-19 
are 

11 
exacerbating staffing shortages across the health care 
system.” Id. at 61,558–61,559. CMS concluded that 
“[h]igher rates of vaccination . . . in health care 
settings[] will contribute to a reduction in the 
transmission 
of 
SARS-CoV-2 
and 
associated 
morbidity and mortality across providers and 
communities, 
contributing 
to 
maintaining 
and 
increasing the amount of healthy and productive 
health care staff, and reducing risks to patients, 
resident, clients, and PACE program participants.” 
Id. at 61,560. 
In short, CMS drew a strong, direct, and evidence-
based 
link 
between 
provider 
staff 
vaccine 
requirements and the health and safety of program 
recipients. There can be no serious argument that the 
Rule does not fall within the broad grants of statutory 
authority enacted by Congress, which, inter alia, 
make it “the duty and responsibility of the Secretary 
to assure that requirements which govern the 
provision of care . . . are adequate to protect the 
health, safety, welfare, and rights of residents[.]” 42 
U.S.C. § 1395i-3(f)(1) (standard for participating 
nursing homes); see also, e.g., id. § 1395x(e)(9) 
(participating hospitals must “meet[] such . . . 
requirements as the Secretary finds necessary in the 
interest of the health and safety” of patients). 
Neither the plaintiff states nor the district court 
or court of appeals engage with the plain text of the 
statutory authority Congress granted to CMS. 
Indeed, the district court dismissed all of the express 
Congressional language—that is, dismissed the 
governing statutes—in a footnote, asserting that “the 
Court need not decide whether those regulations 
[sic—statutes] are properly interpreted by CMS to 
confer it authority to issue the vaccine mandate that 

12 
it has.” Memorandum and Order, Missouri v. Biden, 
No. 21-cv-01329 (E.D. Mo. Nov. 29, 2021) (“District 
Court Order”) at 4 n.5. The court reasoned that 
“irrespective of that determination, the Court’s 
inquiry focuses on whether Congress specifically 
authorized such action[.]” Id. This confused approach 
to statutory interpretation has no basis in any 
decision of this Court. It is well established that, “in 
any case of statutory construction, [the Court’s] 
analysis begins with the language of the statute. And 
where the statutory language provides a clear 
answer, it ends there as well.” Harris Tr. & Sav. Bank 
v. Salomon Smith Barney, Inc., 530 U.S. 238, 254 
(2000) (internal quotation and formatting omitted); 
see also Alexander v. Sandoval, 532 U.S. 275, 288 
(2001) (“We have never accorded dispositive weight to 
context shorn of text. . . . [L]egal context matters only 
to the extent it clarifies text.”). The district court 
erred out of the gate by making “no attempt to ground 
its analysis in the [statutory] language.” Ross v. 
Blake, 578 U.S. 632, 638 (2016).  
Here, there is no way to ground the district court’s 
injunction in the statutory text. Congress gave CMS 
vital authority to set health and safety standards for 
providers who choose to participate in CMS’s 
programs. The Rule is a lawful exercise of that 
unambiguous authority. 
B. 
This Court’s Major Questions Precedents 
Do Not Apply. 
Instead of beginning its statutory interpretation 
with the text, the district court began—and ended—
with the idea that it could make its own assessment 
of whether the questions presented by the Rule were 

13 
politically significant, such that it could ignore 
common rules of statutory construction.  
This Court has recognized that an agency’s 
exercise of regulatory authority may sometimes be of 
such extraordinary or “vast economic and political” 
significance that a court should hesitate before 
concluding that Congress intended to house such 
sweeping authority in an ambiguous statutory 
provision. See Alabama Ass’n of Realtors v. Dep’t of 
Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021) 
(internal quotation marks omitted); King v. Burwell, 
576 U.S. 473, 485–486 (2015); Utility Air Regulatory 
Group v. EPA (UARG), 573 U.S. 302, 324 (2014); FDA 
v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 
159 (2000). The Court has similarly required a clear 
statement from Congress before interpreting a 
statute to “significantly alter the balance between 
federal and state power and the power of the 
Government over private property.” United States 
Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S. 
Ct. 1837, 1850 (2020).   
As an initial matter, on its face, CMS’s Rule is not 
the sort of extraordinary exercise of authority that 
should prompt judicial skepticism. As discussed 
above, the Rule comfortably falls within a precise 
grant of Congressional authority—the authority to 
set health and safety standards for providers 
participating 
in 
the 
Medicare 
and 
Medicaid 
programs. It is difficult to imagine a regulation that 
is more concerned with patient health and safety than 
a regulation requiring the staff serving those patients 
to receive a highly effective vaccine against a virus 
that has caused more than 800,000 deaths in less 
than two years—“the deadliest disease in American 
history.” 86 Fed. Reg. at 61,556. CMS has 

14 
longstanding and unquestioned authority to set 
health and safety standards in operating these multi-
billion-dollar programs, and indeed already sets such 
standards related to controlling the spread of 
infectious disease. See, e.g., 42 C.F.R. § 482.42; see 
Medicare and Medicaid Programs; Conditions of 
Participation for Hospitals, 51 Fed. Reg. 22,010-01, 
22,027 (1986) (placing “accountability on hospitals to 
prevent, control, and report hospital infections and 
communicable diseases”). 
Thus, this is a case in which a federal agency is 
regulating: (i) recipients of Medicare and Medicaid 
funding that are already subject to a detailed 
regulatory scheme administered by this same agency; 
(ii) in an area (controlling the spread of infectious 
disease) in which the agency has regulated these 
same entities for decades; (iii) under statutes that the 
agency regularly relies upon to regulate on the same 
topic. These circumstances bear no resemblance to 
those in which an agency has unduly stretched a 
narrow statutory provision to “bring about an 
enormous and transformative expansion in [its] 
regulatory authority,” UARG, 573 U.S. at 324. 
The fact that CMS has not had reason in the past 
to issue the precise regulation at issue here—a 
requirement that provider staff be vaccinated against 
a particular virus—in no way changes the analysis. 
CMS has never issued such a regulation because CMS 
has never before faced a situation in which high rates 
of non-vaccination among provider staff posed a major 
risk to the health and safety of Medicare and 
Medicaid patients. Congress obviously could not have 
foreseen this precise situation when it enacted the 
statutory 
provisions 
governing 
Medicare 
and 
Medicaid, but it did not need to, since it gave the 

15 
Secretary broad authority to set health and safety 
standards. See Watt v. Energy Action Educ. Found., 
454 U.S. 151, 162 (1981) (“If Congress meant to 
restrain the Secretary[’s] discretion in experimenting 
with the various [policy options], we can expect the 
statute to reflect that intent.”). And neither the 
plaintiff states nor the courts below offered any 
interpretation of the text to explain why a regulation 
regarding vaccines falls outside the statutory grant of 
authority but CMS’s numerous other health and 
safety regulations do not. Put simply, the statute 
cannot be read to contain a carve-out for regulations 
related to vaccines. See Lewis v. City of Chicago, Ill., 
560 U.S. 205, 215 (2010) (“It is not for us to rewrite 
the statute so that it covers only what we think is 
necessary to achieve what we think Congress really 
intended.”).  
In reaching its conclusion that Congress could not 
have intended to authorize the Rule, the district court 
relied on CMS’s estimate that compliance with the 
Rule would cost $1.3 billion. District Court Order at 
5. But the court gave no analysis of why this number 
is inappropriate in the context of Medicare and 
Medicaid funding and compliance overall; and the 
court failed to mention CMS’s reasoned explanation 
in the Rule that the financial strain on providers 
would be negligible because most of the costs would 
be paid by the federal government. See 86 Fed. Reg. 
at 61,613. The district court also sought to justify its 
refusal to apply traditional statutory interpretation 
on the ground that the Rule could upset the balance 
between 
federal 
and 
state 
authority 
because 
vaccination requirements are often regulated at the 
state level. See District Court Order at 6. But many 
health and safety regulations in the Medicare and 
Medicaid programs overlap with areas of state 

16 
authority, and have done so for decades. There is no 
principled reason why regulations pertaining to 
vaccines 
should 
implicate 
different 
federalism 
considerations 
than 
long-standing 
regulations 
pertaining to health and safety for federal program 
recipients generally.16 
 
There is also a deeper problem with the 
plaintiffs’ (and the district court’s) major questions 
analysis. This Court has never suggested that courts 
should (or could) impose limitations on Congressional 
delegations of authority when those limitations—
based on courts’ own perceptions of the political 
sensitivities of a particular issue—have no basis in 
the statutory text. See Alabama Ass’n of Realtors, 141 
S. Ct. at 2489 (major questions precedents apply “if 
the text [is] ambiguous”); UARG, 573 U.S. at 324 
(same). This Court has certainly never conducted the 
sort of free-floating, anti-textual analysis that 
produced the injunction below. The Court has invoked 
considerations of “economic and political significance” 
to 
assist 
in 
deciding 
between 
competing 
interpretations of a statute, not to “create ambiguity 
where the statute’s text and structure suggest none,” 
Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 227 
(2008). See, e.g., Brown & Williamson, 529 U.S. at 
133–161 (carefully analyzing the statutory scheme 
and rejecting the agency’s “strained understanding” 
of the statutory language); UARG, 573 U.S. at 322 
 
16 The Medicare program alone spends $700 billion every 
year. Azar v. Allina Health Servs., 139 S. Ct. 1804, 1808 (2019).  
The Constitution and this Court’s precedents recognize 
Congress’ authority under the Spending Clause “to appropriate 
federal moneys to promote the general welfare,” and to place 
conditions on the acceptance of federal funds, even in areas that 
are historically of state concern.  Sabri v. United States, 541 U.S. 
600, 605 (2004).   

17 
(rejecting interpretation that “would be inconsistent 
with—in fact, would overthrow—the Act’s structure 
and design”); Gonzales v. Oregon, 546 U.S. 243, 267 
(2006) (rejecting interpretation of agency authority 
that was “incongruous with the statutory purposes 
and design”). 
The plaintiffs’ sole attempt to paint CMS’s 
statutory authorization as ambiguous is an argument 
that the statutory text instructing the Secretary to set 
health and safety standards is relatively broad. But 
Congress knows how to write statutes narrowly or 
broadly, and it is black-letter law that a statute’s use 
of broad language does not render it ambiguous per 
se. Diamond v. Chakrabarty, 447 U.S. 303, 315 (1980) 
(“Broad 
general 
language 
is 
not 
necessarily 
ambiguous when congressional objectives require 
broad terms.”); Yates v. United States, 574 U.S. 528, 
564 (2015) (“[W]hen words have a clear definition, and 
all other contextual clues support that meaning, the 
canons cannot properly defeat Congress’s decision to 
draft broad legislation.”); see also Mourning v. Fam. 
Publications Serv., Inc., 411 U.S. 356, 369 (1973) 
(“Where the empowering provision of a statute states 
simply that the agency may ‘make . . . such rules and 
regulations as may be necessary to carry out the 
provisions of this Act,’ . . . the validity of a regulation 
promulgated thereunder will be sustained so long as 
it is ‘reasonably related to the purposes of the 
enabling legislation.’”). 
For instance, in Little Sisters of the Poor Saints 
Peter and Paul Home v. Pennsylvania, 140 S. Ct. 
2367, 2379–2380 (2020), this Court interpreted a 
provision of the Affordable Care Act that required 
employers to provide “such additional preventive care 
. . . as provided for in comprehensive guidelines 

18 
supported by [the Health Resources and Services 
Administration (HRSA)].” The Court held that this 
provision authorized HRSA to exempt employers with 
religious or “sincerely held moral” objections from the 
general obligation to provide contraceptive coverage. 
Id. at 2380–82. While two Justices doubted that 
Congress would have delegated this particular task to 
HRSA, see id. at 2406 (Ginsburg, J., dissenting), the 
Court held that “‘[o]ur analysis begins and ends with 
the text,’” id. at 2380 (majority op.). The Court 
explained that “[o]n its face . . . the provision grants 
sweeping authority to HRSA to craft [its] standards.” 
Id. at 2380. “Congress could have limited HRSA’s 
discretion in any number of ways, but it chose not to 
do so”—and “[i]t is a fundamental principle of 
statutory interpretation that absent provisions 
cannot be supplied by the courts.” Id. at 2380–81 
(internal quotation marks and formatting omitted). 
The Court emphasized that courts cannot “impos[e] 
limits on an agency’s discretion that are not 
supported by the text.” Id. at 2381. 
The plaintiff states ask this Court, “[b]y 
introducing a limitation not found in the statute, to 
alter, rather than to interpret,” the Medicare and 
Medicaid statutes. Id. And to the extent the states’ 
position is fueled by disagreement with the wisdom of 
the Rule, “a policy concern cannot justify supplanting 
the text’s plain meaning.” Id. CMS followed 
Congress’s clear instructions to set health and safety 
standards for providers participating in its federal 
programs. 
CONCLUSION 
For 
the 
foregoing 
reasons, 
the 
federal 
government’s application for a stay should be granted. 

19 
Dated: December 22, 2021 Respectfully submitted, 
NICOLE G. BERNER 
CLAIRE PRESTEL 
RENEE M. GERNI 
SERVICE EMPLOYEES
INTERNATIONAL UNION 
1800 Massachusetts 
Ave. N.W. 
Washington, DC 20036 
Attorneys for Amicus 
Curiae SEIU 
BARBARA J. CHISHOLM 
   Counsel of Record 
JONATHAN ROSENTHAL 
ALTSHULER BERZON LLP 
177 Post Street, Ste. 300 
San Francisco, CA 94108 
(415) 421-7151
bchisholm@altber.com
Attorneys for Amici
Curiae
DAVID J. STROM  
DANIEL J. MCNEIL 
AMERICAN FEDERATION
OF TEACHERS  
555 New Jersey Ave. 
N.W.  
Washington, DC 20001 
Attorneys for Amicus 
Curiae AFT  
JUDITH E. RIVLIN 
TEAGUE P. PATERSON 
KYLE C. CAMPBELL 
AMERICAN FEDERATION
OF STATE, COUNTY, AND
MUNICIPAL EMPLOYEES 
1625 L Street NW 
Washington, D.C. 20036 
Attorneys for Amicus 
Curiae AFSCME

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