Physician Practices and Outpatient Care

The sentence is a factual assertion, and it is false for every quarter from the second quarter of 2020 through the third quarter of 2021 and for every State. The layers section lists the instruments by layer, the six quarters section by quarter, the State-by-State table by State and the quarter map by function. For the third quarter of 2021, the quarter for which the sentence is most often written, subpart B of the third quarter of 2021 section lists the OSHA Healthcare Emergency Temporary Standard, the federal conveyance, entry and border orders, the CMS facility rules, the health care worker vaccination-or-testing orders of fifteen States, the District of Columbia and Puerto Rico and the largest metros (seven of those jurisdictions naming clinics, doctors' offices or every licensed provider, the others binding hospitals, nursing homes and other licensed facilities) and the public-employee orders of North Carolina, Virginia, Minnesota and Hawaii, the health care face-covering requirements of every State that preserved them, the indoor face-covering reinstatements of seven States and the District of Columbia and the largest metros (infection-prevention and airborne-transmission controls on every clinical setting and every indoor public space), Pennsylvania's elective-reduction order to August 23, Washington's Proclamation 20-24.2, Maryland's directive, New Jersey's Directives and West Virginia's conditions, each with issuer, date, operative clause, compliance date, enforcement and status (Ex. SEC-02-001; Ex. FED-020; Ex. FED-094; Ex. SEC-02-045; Ex. SEC-02-038; Ex. SEC-02-019; Ex. SEC-02-051; Ex. SEC-02-030; Ex. PA-025; Ex. WA-049; Ex. NJ-084; Ex. WV-063).²²⁷ The United States told the District Court what the Service was doing with each claim.²²⁸

taking a closer look at every single claim... doing more follow-up... with the taxpayers about... what sort of state, local, or government orders they're relying uponTr. 16:9-10; 50:15-18; 51:1-7

A form sentence that names no order and consults no index is not that.

The record the sentence contradicts is not obscure. On March 20, 2020 the Governor of Florida ordered that "[a]ll hospitals, ambulatory surgical centers, office surgery centers, dental, orthodontic and endodontic offices, and other health care practitioners' offices in the State of Florida are prohibited from providing any medically unnecessary, non-urgent or non-emergency procedure or surgery" and that "all health care practitioners licensed in the State of Florida, including dentists, shall immediately cease performing these elective services."²²⁹ On March 22, 2020 the Governor of Texas ordered that "all licensed health care professionals and all licensed health care facilities shall postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient's physician," on pain of "a fine not to exceed $1,000, confinement in jail for a term not to exceed 180 days, or both."²³⁰ On March 23, 2020 the Kentucky Cabinet for Health and Family Services directed that "ALL non-emergent, non-urgent in-person medical, surgical, dental, and any other healthcare practice or procedure must have immediately ceased effective close of business on March 18, 2020," and named chiropractic medicine as its example of a non-urgent service.²³¹ The Governor of Oregon ordered on April 27, 2020 that "[e]lective and non-urgent procedures across all care settings that utilize PPE, including but not limited to, hospitals, ambulatory surgery centers, outpatient clinics (including community health clinics and student health centers), dental clinics, and veterinary clinics shall not occur unless they meet the requirements" of the Oregon Health Authority, and that order stayed in force until June 30, 2021.²³² In the third quarter of 2021 the Occupational Safety and Health Administration's COVID-19 Healthcare Emergency Temporary Standard, 29 C.F.R. § 1910.502, applied "to all settings where any employee provides healthcare services or healthcare support services," with compliance due July 6 and July 21, 2021, and its own industry profile counted 161,977 entities and 212,620 establishments in offices of physicians alone; California's State Public Health Officer ordered on August 5, 2021 that every worker in "Clinics & Doctor Offices (including behavioral health, surgical)" have "their first dose of a one-dose regimen or their second dose of a two-dose regimen by September 30, 2021"; the Governor of Illinois ordered on August 26, 2021 that the workers of every "Health Care Facility," a term his order defined to include "physician offices," be vaccinated or tested weekly, and that every person "in healthcare settings," vaccinated or not, "continue to be required to wear a face covering"; the Governor of Washington ordered on August 9, 2021 that no "Health Care Provider" fail "to be fully vaccinated against COVID-19 after October 18, 2021"; and the Rhode Island Department of Health ordered on August 17, 2021 that "[b]y October 1, 2021, all health care workers and health care providers must be vaccinated."²³³ The Service's position is not a close call on a contested record. It is factually incorrect. It describes a period, March 2020 through September 2021, that did not occur. The position that an employer operating a physician practice, an outpatient clinic, a behavioral health practice or an allied health practice in the United States between March 2020 and September 2021 was subject to no governmental order limiting its operations cannot be squared with the Federal Register, with any State's register of executive orders or with the Service's own list of qualifying orders, and this analysis declines to treat it as a serious account of the period.

The statute contains no essential-employer exception; it asks whether the operation was partially suspended due to orders limiting commerce, travel or group meetings, and an employer permitted to remain open under conditions was suspended by the conditions.²³⁴ The Notice's own Q&A-11 excludes only an employer whose order "allows all of the employer's operations to remain open," and provides that an employer permitted to continue operations is partially suspended "if, under the facts and circumstances, more than a nominal portion of its business operations are suspended by a governmental order"; the United States quoted that sentence to the District Court as the rule the Service applies.²³⁵ The history confirms the point: as posted on April 29, 2020, FAQ 30 answered the essential-business question with a flat "No," and the qualifying sentence on which the Service now relies first appeared on June 19, 2020, after the second quarter of 2020 had begun and after the determinations for that quarter were being made.²³⁶ For this industry the designation was the premise of the orders, not an exemption from them: the procedure prohibitions, the resumption conditions, the health care face-covering requirements, the facility rules, the vaccination-or-testing orders and the OSHA standard were addressed to health care employers because they remained open (Ex. SEC-02-011; Ex. SEC-02-020; Ex. SEC-02-032; Ex. SEC-02-001; Ex. SEC-02-045; Ex. SEC-02-019). Tri-State was a hospital, an essential employer by every definition, and the court held its pleaded suspension sufficient.²³⁷ An employer that was ordered to postpone its procedures, screen its patients at the door, seat a third of its waiting room, allocate its PPE to others and exclude its unvaccinated staff was not unaffected because it was permitted to remain open; the word "essential" describes why the orders reached it, not why they did not.

The clause reaches "orders from an appropriate governmental authority limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes)"; a stay-at-home order limits all three in terms, and the statute says nothing of the addressee.²³⁸ The Notice's own Q&A-10 lists "a State's emergency proclamation that residents must shelter in place for a specified period" and "an order from a local official imposing a curfew on residents" as governmental orders, and its Example 1 finds physical therapy and chiropractic offices suspended by a State order that closed them; the United States told the District Court that the qualifying instruments are "orders, proclamations, or decrees from the Federal government or any State or local government" that limited "commerce, travel, or group meetings," and told the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party."²³⁹ As posted on April 29, 2020, FAQ 28 defined governmental orders as those that limit commerce, travel or group meetings "in a manner that affects an employer's operation of its trade or business, including orders that limit hours of operation"; the Notice changed "affects" to "relate to the suspension of" on March 1, 2021, after every 2020 determination had been made, and the United States has represented that the document carrying the change "lacks the force of law."²⁴⁰ For this industry the stay-at-home orders confined the practice's patients and staff (California's Executive Order N-33-20; Ex. NY-005; Illinois' Executive Order 2020-10; Ex. PA-006; Michigan's Executive Order 2020-21; Louisiana's Proclamation 33 JBE 2020; Maryland's Order No. 20-03-30-01; Virginia's Executive Order 55; Kansas' Executive Order 20-16; Hawaii's Third Supplementary Proclamation; Ex. MT-009; Ex. NV-012), and every one of them was accompanied by a sector order addressed to the practice itself. The Service cannot exclude from the statute the orders the statute names and the Service's own list includes.

"Comparable operations" and "telework" are not in the statute; a partial suspension is "a temporary delay, interruption, or termination of a portion an employer's business," and an operation the orders compelled to move to telecommunication is an operation the orders changed.²⁴¹ The Notice's own rule applies only where operations "comparable to its operations prior to the closure" can be continued by telework; a procedure, an examination, an injection, a laboratory draw, a manipulation, a fitting, an imaging study or a supervised therapy session cannot be, and the Notice's Q&A-16(4) treats a transition to telework that takes more than two weeks as itself a partial suspension.²⁴² The four comparable-operations factors and the transition sentence first appeared in the Notice on March 1, 2021; as posted in 2020, the FAQs contained neither.²⁴³ For this industry telehealth existed in 2020 and 2021 only because federal and State orders permitted it and on the conditions those orders fixed (Ex. SEC-02-005; Ex. SEC-02-006; Ex. SEC-02-007; Ex. SEC-02-008; Ex. AGY-FED-HEALTH-OTHER-009; Ex. SEC-02-059; Ex. IL-068), and the published data show that in-person visits fell by nearly 60 percent in the spring of 2020 while telehealth replaced a fraction of them.²⁴⁴ The ground answers a question the statute does not ask, with a rule the Notice states the other way for an operation that cannot be performed by telephone.

An order that confines a practice's patients to their homes, that bars them from a venue without proof of vaccination, that quarantines them for fourteen days or that closes the schools that bring them to the pediatrician is an order "limiting commerce, travel, or group meetings," and the commerce it limits is the practice's.²⁴⁵ The statute asks only whether the operation was suspended because of the order; Tri-State holds the standard to be but-for causation.²⁴⁶ Q&A-13 by its own terms addresses an employer that "responds to the lack of demand by suspending some or all of its operations" and claims a suspension for that reason alone; it has no application to an employer that was itself the object of a procedure order, a face-covering order, a facility rule, a workplace standard or a vaccination order, and every employer in this industry was.²⁴⁷ The history confirms the point: as posted on April 29, 2020, FAQ 32 confined the customer exclusion to "an essential business that is not required to close its physical locations or otherwise suspend its operations" and to a suspension claimed "for the sole reason" of the customers' stay-at-home order; the Notice extended it to every employer and to any "reduction in demand" on March 1, 2021.²⁴⁸ The United States has represented that "a business may be suspended 'due to' a government order addressing a third party," and Q&A-12 honors orders on suppliers; Q&A-13 cannot be reconciled with either, and where it conflicts with the text the text governs.²⁴⁹ The ground mistakes the addressee of an order for its effect, and the statute asks about the effect.

"Voluntary" is not in the statute; "due to" is, and it means but-for causation.²⁵⁰ Q&A-14 by its own terms reaches only a suspension "not due to a governmental order." A practice that postponed its procedures under GA-09, screened its patients under the OSHA standard, seated a third of its waiting room under the resumption orders, masked its staff under the health care face-covering orders, one of the infection-prevention controls those orders imposed, excluded its exposed staff under § 3205 and tested its unvaccinated staff weekly under EO 252 did none of those things voluntarily; it did them because orders required them, and but for the orders no law required them (Ex. SEC-02-011; Ex. SEC-02-001; Ex. SEC-02-032; Ex. SEC-02-073; Ex. SEC-02-047; Ex. SEC-02-019).²⁵¹ Tri-State refused the United States' argument that the hospital's changes were caused by the virus rather than the orders: "the required protocols and procedures to comply with the Proclamation were not" caused by COVID-19 illness, "[s]ick patients and employees alone did not require additional protocols," and on the United States' theory "there are not many businesses or any business that would be eligible under the ERC at all."²⁵² A modification an order compelled is not a choice, and the Service's characterization of it as one is a characterization the court that examined it has already refused.

Q&A-14 reaches, by its own terms, only a suspension "not due to a governmental order" (Notice 2021-20, Q&A-14, at 929), and the United States and the District Court have defined the excluded employer as one "not being ordered to do so" and as one that "could nonetheless, with telework, 'continue operations comparable to its operations prior to the closure' but chooses not to."²⁵³ No practice in the seven States whose standing duties are set out above answered that description in any of the six quarters. In Texas the reopening orders permitted operation only on conditions with the force of law (Ex. SEC-02-011; Executive Orders GA-28 and GA-29; Ex. DUT-TX-012). The standing statutes commanded the same conduct independently: the Communicable Disease Prevention and Control Act, under which "Each person shall act responsibly to prevent and control communicable disease" (Health and Safety Code §§ 81.002, 81.082 to 81.087, Ex. DUT-TX-001; Ex. DUT-TX-006), the workplace-safety duty of Labor Code § 411.103 (Ex. DUT-TX-013), the Medical Board's emergency standard of practice (Ex. AGY-ST-HEALTH-BOARDS-046) and the general duty clause, enforced by citation from September 2020 and, in every clinic, by the Healthcare Emergency Temporary Standard from June 21, 2021 (Ex. DUT-FED-001; Ex. LAW-487; Ex. SEC-02-001). The Legislature then fixed the standard of care as compliance with "government-promulgated standards, guidance, or protocols," for every action commenced on or after March 13, 2020 (Ex. DUT-TX-015). Florida, California, New York, New Jersey, Arizona and Colorado bound their practices the same way, and the standing-duties subsection above sets out each command with its exhibit. The safe-workplace statutes had no COVID-19 content until the health authorities said what a safe and healthful clinic required; the measures were taken because those directives defined the duty and would not have been taken without them. "Due to" is but-for causation (Tri-State, ECF No. 38, at 17-19), and the causation runs from the command to the measure without an intervening choice; the Notice's own words confirm it, treating a modification "required by a governmental order as a condition of reopening" as a partial suspension due to the order (Q&A-18, at 930).²⁵⁴ A statute that commands conduct is an order from an appropriate governmental authority, and the Service's characterization of compliance as choice fails wherever a command reached the employer, which in this industry was everywhere, in every quarter.

The statute contains no percentage; Congress placed its numerical thresholds in the gross-receipts prong alone, and Tri-State refused to read a percentage into the suspension prong: "If the court were to do this, it would read requirements into the statute that do not exist."²⁵⁵ The United States has represented in two courts that the figure is a safe harbor and not a requirement.

Effectively, this is a safe harbor... Properly understood, it isn't an eligibility requirement.Doc. 44 at 14

It told the District Court that "the IRS did not say that a taxpayer cannot qualify for the ERC if they have been impacted less than 10 percent," told the Ninth Circuit that the figure is "a quintessential safe harbor" and "a safe harbor rather than a hard floor," and the District Court held the figure "not an exclusionary cut-off point."²⁵⁶ This analysis holds the United States to those representations; judicial estoppel is available against the contrary position on which the letters rest, and the statements are admissions of a party-opponent.²⁵⁷ The history confirms the point: as posted on April 29, 2020, the FAQs contained no "nominal" test and no percentage; "more than a nominal" first appeared on June 19, 2020; the two 10 percent deeming rules first appeared in the Notice on March 1, 2021; and the Service's current FAQ page and its Chief Counsel memorandum of October 18, 2023 nonetheless administer the figure as the definition of "more than nominal," while the United States has identified no instance in which a claim was allowed below it.²⁵⁸ For this industry the showing exceeds the safe harbor many times over: the procedure orders terminated the function that produces the majority of a procedural practice's revenue for four to ten weeks and conditioned it for a year; the industry's own data record a decline in visits of nearly 60 percent in the spring of 2020; and the OSHA standard, the face-covering and exposure-control orders and the vaccination orders governed every visit and every employee in the third quarter of 2021.²⁵⁹ This analysis discusses the figure only as the United States' safe harbor; a number that "isn't an eligibility requirement" cannot be the ground on which any employer's claim is decided.

The statute has no nominal-effect requirement; a partial suspension is "a temporary delay, interruption, or termination of a portion an employer's business," and Tri-State refused the United States' attempt "to conflate 'more than nominal' to suggest that it means 'significant.'"²⁶⁰ The Notice's own Q&A-18 lists "limiting occupancy to provide for social distancing, requiring services to be performed only on an appointment basis... or requiring employees and customers to wear face coverings" as modifications "required by a governmental order as a condition of reopening a physical space for business or service to the public," and treats a modification that reduces the customers a business can serve or the services it can provide as more than nominal; every one of those modifications was imposed on this industry by the resumption orders of 2020, by the health care face-covering orders of 2021, which were workplace infection-prevention and exposure-control requirements on every clinical setting, and by the OSHA standard's screening, distancing, barrier and removal rules (Ex. SEC-02-013; Ex. SEC-02-032; Ex. WA-032; Ex. SEC-02-073; Ex. SEC-02-001).²⁶¹ The categorical sentence on masks and one-way aisles on which the Service relies first appeared in the Notice on March 1, 2021, after the 2020 determinations; it is a factual conclusion stated without facts, and the United States has told the Ninth Circuit that "no facts or data" were needed to state it.²⁶² For a clinic the modifications are not a mask and a sign: a six-foot rule in a waiting room built for twelve removes eight chairs; a screening protocol at the door adds minutes to every arrival and turns away the symptomatic; an appointment-only rule ends walk-in care; a barrier at reception changes how every registration is done; the removal of an exposed employee with pay removes a provider from the schedule for a week; and a weekly testing cycle for every unvaccinated employee is a standing cost imposed by order. The Service's own guidance describes those modifications as compelled and as more than nominal, and the Service is bound by it.

The point is agreed and irrelevant. This analysis treats no bare declaration as a suspending order; it treats the emergency declarations as the predicates for the orders issued under them, and it relies on the orders. Q&A-10 itself lists "a State's emergency proclamation that residents must shelter in place for a specified period" as a governmental order, which is to say that a proclamation that contains a limitation on commerce, travel or group meetings is an order whatever its caption.²⁶³ The federal declarations of January 31 and March 13, 2020 were the predicates for the section 1135 waivers, the Defense Production Act orders and the Stafford Act deployments; the State declarations were the predicates for the procedure orders, the resumption conditions, the face-covering orders and the vaccination orders on which this analysis relies (Ex. FED-010; Ex. FED-001; Ex. FED-006; Ex. TX-001; Ex. NJ-001; Ex. GA-001; Ex. FL-001).²⁶⁴ Where a declaration itself limited commerce, travel or group meetings, as Hawaii's supplementary proclamations, Louisiana's proclamations, Iowa's disaster proclamations and Delaware's modifications did in their operative paragraphs, it is treated as an order because it is one (Ex. HI-003; Ex. LA-038; Ex. SEC-02-042; Ex. DE-006).²⁶⁵ The Service's ground answers an argument this analysis does not make and leaves the orders it does rely on untouched.

Q&A-12 provides that an employer "may be considered to have a full or partial suspension of operations due to a governmental order if... the business's suppliers are unable to make deliveries of critical goods or materials due to a governmental order that causes the supplier to suspend its operations," and the United States told the Ninth Circuit that the rule "never even mentions a 'physical[ ] clos[ure]' order against the supplier" and that "a business may be suspended 'due to' a government order addressing a third party."²⁶⁶ AM 2023-005 says of itself that it "may not be used or cited as precedent"; it adds to Q&A-12 an "alternate supplier" element and a requirement that the employer possess and produce the supplier's order, neither of which appears in the Notice or in the United States' briefs; and Tri-State refused to give weight to a Chief Counsel memorandum bearing the same disclaimer.²⁶⁷ For this industry the supply-chain orders were not attenuated; they were addressed to the practice's supplies by name. The scarce-materials designation of March 25, 2020 listed N95 respirators, surgical masks, gloves, gowns, face shields and disinfectants and ran to November 15, 2021; the FEMA allocation and export rule governed every shipment of covered PPE to June 30, 2021; the Defense Production Act orders directed those supplies to hospitals; New Mexico regulated the sale and distribution of PPE by order; and the resumption orders made a PPE inventory a condition of resuming procedures, so that the allocation orders and the resumption orders operated together on the same function (Ex. FED-074; Ex. ECO-A-071; Ex. SEC-02-010; Ex. FED-078; Ex. FED-070; Ex. NM-008; Ex. SEC-02-013; Ex. SEC-02-032).²⁶⁸ The causation standard is but-for, and the Chief Counsel memorandum the Service cites is one it cannot cite.

Three answers, each sufficient, stated in full in the ecosystem section and in subpart D of the third quarter of 2021 section. First, the orders had not lifted: in every quarter through the third quarter of 2021 orders were in force on every day that reached this industry's functions, and the six quarters section lists them with their status on the quarter's first and last days (Ex. SEC-02-001; Ex. FED-020; Ex. WA-049; Ex. NJ-084; Ex. PA-025; Ex. WV-063; Ex. SEC-02-045; Ex. SEC-02-038; Ex. SEC-02-019; Ex. SEC-02-051; Ex. SEC-02-030).²⁶⁹ Second, the text: "during the calendar quarter" modifies "suspended," Congress did not write "orders in effect during the calendar quarter," and Tri-State defines a suspension to include a "delay" and fixes causation as but-for; a delay in restoring an operation that an order dismantled is a suspension during the quarter due to the order.²⁷⁰ Third, the Notice: Q&A-22 makes an employer suspended for part of a quarter eligible for the whole of it, and Q&A-16(4) treats the transition period after an order operates as itself a partial suspension.²⁷¹ The sentence in AM 2023-005 on which the ground rests states that "residual delays caused by a governmental order in place during a prior calendar quarter will not constitute a governmental order in subsequent calendar quarters once the order has been lifted"; the statute asks a different question, whether the operation was suspended during the quarter due to orders, and a Chief Counsel memorandum that answers the wrong question cannot be cited as precedent by its own terms.²⁷² This analysis does not say that an expired order suspended anyone by its own force; it says that the suspension the order caused continued because of it for the period the order's own reopening steps took, and that on every day of that period other orders were in force. The Service's phrase describes a continuing suspension, and a continuing suspension is a suspension.

The suspension prong does not depend on the gross-receipts prong. The clause provides two independent routes to eligibility, joined by "or," and Tri-State held them independent "by Defendant's admission," finding "even Defendant's own argument is contradictory" when the United States argued that the gross-receipts prong narrowed the suspension prong.²⁷³ An employer eligible under the suspension prong is eligible whatever its receipts; Congress placed its numerical thresholds in the gross-receipts prong alone, and the United States itself told the District Court that an employer "could have been partially suspended, under the facts and circumstances, even if only suffering, say, a six percent reduction in gross receipts."²⁷⁴ The ground measures the claim against a prong the claim does not invoke.

The instruments this analysis relies on are orders. The OSHA standard is a rule promulgated under 29 U.S.C. § 655(c) and enforced by citation under 29 U.S.C. § 666 (Ex. SEC-02-001; Ex. FED-081). The State procedure orders were executive orders, health officer orders and directives enforced by criminal penalty and licensure (Texas Government Code § 418.173; N.J.S.A. App. A:9-49; Cal. Health and Safety Code § 120275; 20 ILCS 3305/19) (Ex. SEC-02-011; Ex. SEC-02-017; Ex. DUT-CA-003). The vaccination orders are regulations and executive orders enforced by licensure and penalty (10 NYCRR 2.61; 216-RICR-20-15-8; 6 CCR 1011-1; 10-144 C.M.R. ch. 264) (Ex. SEC-02-038; Ex. SEC-02-071; Ex. CO-055). The CMS rules are conditions of participation published in the Federal Register (Ex. FED-090; Ex. FED-094). The workplace standards are regulations adopted under rulemaking authority (Ex. SEC-02-047; Virginia's 16VAC25-220, as documented in the Safety and Health Codes Board's Briefing Package of June 23, 2020, Ex. AGY-ST-LABOR-WORKPLACE-001; Ex. AGY-ST-LABOR-WORKPLACE-054). Where a federal recommendation is in the chain, the State order that adopted it made it mandatory, and the Notice's own Example 1 to Q&A-10 treats such an order as an order.²⁷⁵ Where this analysis names a department's checklist, protocol, toolkit or decision tree, it relies on the order that required its use and names that order; the document is the content of the order, not a substitute for it. Where no order required it, the document is stated as a fact and circumstance and appears in no inventory of orders in force. Q&A-10 provides that an order qualifies "without regard to the level of enforcement," and the United States told the District Court that "orders that were otherwise directed at business operations (operational hours, space, etc.) would also be considered."²⁷⁶ The Service's practice of describing a regulation as "guidance" because it was published by a health department rather than signed by a governor has no basis in the statute, the Notice or the instruments; each exhibit in the Library records its issuer, its authority and its enforcement provision, and the Service is free to read them.

Agreed, and applied. In its ordinary meaning an order is a command or direction issued by one with authority, and a governmental order is such a command issued by a governmental authority; the dictionary definitions collected in the statute analysis say so, and Tri-State read the clause by "plain meaning" on the parties' agreement that no part of it is ambiguous.²⁷⁷ Applied to the instruments listed in this analysis, the ordinary meaning includes every executive order, proclamation, health officer order, directive, emergency regulation, standard, rule, directed health measure, mandate, administrative order and general order in the Library, because each commands conduct on the authority of a government; it excludes press statements, on which this analysis does not rely. The ordinary meaning of "order" also includes an order addressed to a third party, an order issued by a federal agency, an order issued by a health officer, a court or a school board, and an order that limits commerce by conditioning it rather than by prohibiting it; the Service's glosses that exclude those categories depart from the ordinary meaning the Service invokes. The word means what it says, and what it says covers the instruments in the layers section.