l******t
发帖数: 55733 | | c*******e
发帖数: 5818 | | L**********g
发帖数: 498 | | c****h
发帖数: 4968 | | d***u
发帖数: 5 | | Y*****7
发帖数: 1 | | Q*****i
发帖数: 349 | | c***t
发帖数: 146 | | S*******l
发帖数: 4637 | 9 正在读高院的ruling, 刚读完Justic Thomas的dissenting opinion.
事情是美国卫生部要求接受联邦Medicare Medicaid payment的医疗机构， nursing
home, long term care facilities etc必须让雇员打疫苗，不打疫苗的要开除否则有
可能政府会终止Medicare Medicaid合同 and face fines.
密苏里和路易斯安娜州告到高院，要求停止这个mandate。
Justic Thomas意见是白登政府没有提供足够证据证明卫生部有这个权力要求几百万医
护接受他们不想接受的疫苗，特别是这个疫苗是不可逆的。国会也没有明确给卫生部这
个授权。
还split hairs， argue说，打不打疫苗对这些医护开展法律指定他们的工作职责没有
必要关系。
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. Covered 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. | S*******l
发帖数: 4637 | 10 Justice Alito的opinion比较有意思。
他其实在建一个precedence先例要限制行政branch随意发布行政命令的趋势。
他的意见是vaccine mandate影响选民生活，却没给选民讨论和反对的机会。
卫生部argue for pandemic emergency, 但是自己却推迟了好几回。所以不应该以应急
为由跳过国会notice and comment的步骤。让选民没有发表意见机会就被强制接受一个
影响他们生活的行政命令。
JUSTICE ALITO, with whom J USTICE THOMAS, J USTICE
GORSUCH, and JUSTICE BARRETT join, dissenting.
I join J USTICE THOMAS’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 Government 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 its 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 healthcare workers, it did not
have the authority to impose that requirement in the way
2 BIDEN v. MISSOURI
ALITO, J., dissenting
it did. Under our Constitution, the authority to make laws
that impose obligations on the 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 complaints 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 entities 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 show 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 rule-
making, 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 do
3Cite as: 595 U. S. ____ (2022)
ALITO, J., dissenting
to demonstrate good cause, federal 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 seeking 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 below 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 already been vaccinated before the
agency took action. President Biden announced the CMS
mandate on September 9, 2021, nearly two months before
the agency released the rule on November 5, and the 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
ALITO, 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 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
5Cite as: 595 U. S. ____ (2022)
ALITO, J., dissenting
healthcare workers to the choice of their jobs or an irre -
versible medical treatment.
Therefore, I respectfully dissent. | l******t
发帖数: 55733 | 11 mmp弟各种搞笑。搞出的mrna所有人都来当小白鼠
【在 S*******l 的大作中提到】
: Justice Alito的opinion比较有意思。
: 他其实在建一个precedence先例要限制行政branch随意发布行政命令的趋势。
: 他的意见是vaccine mandate影响选民生活，却没给选民讨论和反对的机会。
: 卫生部argue for pandemic emergency, 但是自己却推迟了好几回。所以不应该以应急
: 为由跳过国会notice and comment的步骤。让选民没有发表意见机会就被强制接受一个
: 影响他们生活的行政命令。
: JUSTICE ALITO, with whom J USTICE THOMAS, J USTICE
: GORSUCH, and JUSTICE BARRETT join, dissenting.
: I join J USTICE THOMAS’s dissent because I do not think
: that the Federal Government is likely to be able to show
| k**********4
发帖数: 16092 | 12 有两个l那个是不是你
【在 l******t 的大作中提到】
: 高院更懂？
| T******s
发帖数: 43 | | l******t
发帖数: 55733 | 14 是
【在 k**********4 的大作中提到】
: 有两个l那个是不是你
| g******t
发帖数: 18158 | 15 有一点常识就该知道要保持疫苗的多样化，特别是要保留一定数量的人去打传统灭活疫
苗，避免被全灭
【在 l******t 的大作中提到】
: mmp弟各种搞笑。搞出的mrna所有人都来当小白鼠
| Y********g
发帖数: 1 | 16 这个疫苗基本上不管用。
高院的意思，现在这机巴所谓的新冠疫苗没法象麻疹疫苗一样做到百分百有效，所以不
能强制。你们政府应该想其他的办法解决问题。 | k**0
发帖数: 1 | 17 看dissenting opinion，是不满违背了“议一议”的准则 |
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