IntroductionWhat follows is ordinary statutory and administrative-law analysis. It is not advocacy, not medical guidance, and not commentary on the underlying policy debate. Explaining the limits Congress placed on an agency's authority is basic civics and foundational administrative law.
Based on a review of the governing statutes, relevant case law, and the scope of CMS's delegated authority, there is a fundamental legal defect in the agency's proposal: Congress explicitly prohibited the federal government from using Medicare or Medicaid to control the practice of medicine.
I. Congress Drew a Bright Line in 1965When Medicare was enacted in 1965, lawmakers were acutely aware of physicians' concerns that federal payment could be used as leverage to dictate clinical decision-making. The American Medical Association had opposed Medicare for years, warning that government reimbursement would inevitably lead to government control over medical judgment. Many physicians feared that participation would place their professional decisions under bureaucratic supervision.
Congress addressed those concerns directly and deliberately by including Section 1801 of the Social Security Act, codified at 42 U.S.C. § 1395. The statute's language is clear, categorical, and unusually broad:
QuoteNothing in this subchapter shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided, or over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services; or to exercise any supervision or control over the administration or operation of any such institution, agency, or person.
This provision was not boilerplate or incidental. It reflected a deliberate legislative compromise: the federal government would finance medical care for the elderly and disabled, but it would not dictate how that care was delivered. Congress placed this prohibition at the very beginning of Title XVIII, before any operational or enforcement provisions, underscoring that it was meant to constrain everything that followed. Medicare was designed as a payment program, not as a mechanism for federal control over clinical practice.
II. What CMS Can Lawfully DoWithin those limits, CMS does possess meaningful regulatory authority. The Social Security Act permits the agency to establish "conditions of participation" for hospitals and other providers that seek reimbursement under Medicare and Medicaid. These conditions are intended to ensure that facilities meet baseline standards of safety, competence, and operational reliability.
Historically, conditions of participation have addressed matters such as recordkeeping, staffing qualifications, infection control, emergency preparedness, and facility operations. They regulate how care is delivered in an institutional setting, not which medical treatments physicians may offer to their patients. Their purpose is to ensure that hospitals are capable of providing care safely, not to substitute federal judgment for clinical judgment.
The Supreme Court reaffirmed this distinction in *Biden v. Missouri* (2022), when it upheld CMS's COVID-19 vaccination requirement for healthcare workers. The Court emphasized that the mandate fit within the agency's authority because it directly addressed patient safety within healthcare facilities. It did not dictate the content of medical treatment or prohibit physicians from providing particular forms of care. Even in that context, the Court recognized that CMS's authority is limited and tethered to safety and operational concerns.
Justice Thomas, in dissent, warned explicitly that the agency's power to impose health-and-safety requirements should not be manipulated into a general authority to control medical practice. That warning is directly implicated by the proposal at issue.
III. What CMS Cannot Lawfully DoThe proposed rule crosses the boundary Congress drew. CMS is not imposing a safety protocol or an operational standard. Instead, it seeks to prohibit an entire category of medical treatment by threatening to terminate all Medicare and Medicaid funding for hospitals that provide it.
This is not how conditions of participation have ever functioned. Traditional conditions ask whether a facility is safe, competently managed, and capable of delivering care. The proposed rule asks whether a facility offers a treatment the current administration disfavors. That shift transforms a quality-control mechanism into a tool of substantive medical regulation.
CMS has never been granted authority to decide which treatments physicians may offer. Doing so constitutes supervision and control over the practice of medicine—the very power Congress expressly withheld. Conditioning participation in federal payment programs on the abandonment of particular medical treatments is indistinguishable from direct regulation of clinical practice.
IV. The Unprecedented Nature of the ProposalLegal commentators across ideological lines have recognized how sharply this proposal departs from settled administrative practice. Using Medicare and Medicaid as leverage to ban specific medical treatments represents a dramatic expansion of executive power. If accepted, it would establish a precedent under which any medical service could be targeted through funding threats alone.
Under that framework, future administrations could condition participation in federal programs on whether hospitals provide end-of-life care, contraception, fertility treatments, pain management protocols, or any other form of care that becomes politically disfavored. The practical effect would be to place control over American medicine in the hands of whoever occupies the executive branch at a given moment.
That outcome would invert the structure Congress created. Clinical judgment would become subordinate to political priorities, and professional medical standards would yield to administrative fiat. This is precisely the result Congress sought to prevent when it enacted Section 1801.
V. The Absence of Statutory AuthorizationNo federal statute prohibits the medical treatments at issue. Congress has not enacted such a ban, despite having considered related legislation. Instead, the administration seeks to accomplish indirectly—through funding pressure—what it lacks authority to impose directly through law.
Administrative agencies may implement statutes; they may not replace them. An agency cannot manufacture authority simply because Congress declined to act. When CMS claims it is operating under its "longstanding authority," it ignores the fact that the foundational statute governing Medicare explicitly limits that authority in this domain.
VI. Judicial Skepticism and Likely ReviewCourts have already expressed skepticism toward similar efforts. Federal district courts have issued nationwide and preliminary injunctions blocking related enforcement actions, recognizing that the administration is likely exceeding its statutory bounds. Those rulings reflect a broader judicial unwillingness to allow agencies to circumvent Congress through expansive interpretations of delegated authority.
The proposed rule will face immediate legal challenge. Its defenders will need to explain how a categorical prohibition on medical treatment can be reconciled with a statute that expressly forbids federal control over medical practice. Given the clarity of the statutory text, the legislative history, and decades of consistent administrative practice, that defense will be difficult to sustain.
VII. ConclusionThe legal question presented is straightforward. Medicare and Medicaid are payment programs, not instruments of federal medical governance. Congress drew that line explicitly in 1965, and it remains binding law today.
CMS may regulate how facilities operate to ensure safety and competence. It may not dictate which treatments physicians may provide. The proposed rule attempts to do exactly what Congress forbade: use federal funding to exercise supervision and control over the practice of medicine.
Whatever one's views on the underlying policy debate, the administrative-law analysis is clear. CMS lacks statutory authority for this action. The prohibition Congress enacted six decades ago remains in force, and it bars the agency from proceeding as proposed.
