Somebody Finally Stood Up to RFK Jr.

WELL, WELL, WELL. The brainworm may finally have turned.

Robert F. Kennedy Jr. has spent the past year systematically dismantling federal support for vaccines. From his perch atop the Department of Health and Human Services, he has canceled funding for vaccine research, published misinformation about supposed vaccine dangers, forced out or fired respected scientists who might resist his agenda and withdrawn federal recommendations for a half dozen childhood vaccines.

Until recently, Kennedy had run into little resistance. Donald Trump, who gave Kennedy all this power, has lauded Kennedy and amplified his attacks on vaccines. Bill Cassidy, the high-profile Senate Republican and Louisiana physician has—despite some angry statements—refused to use his chairmanship of the Health, Education, Labor and Pensions Committee to demand changes or even explanations for Kennedy’s actions.

But this week Kennedy suffered a major setback. And it came at the hands of the judiciary.

On Monday, a federal judge in Boston blocked several of Kennedy’s most consequential policy changes, arguing that he had violated legal rules for how the HHS secretary is supposed to make key decisions. The 45-page ruling was a big win for the plaintiffs—a group of medical organizations and affected individuals led by the American Academy of Pediatrics—who have been protesting Kennedy’s actions from the get-go.

“There is a method to how these decisions historically have been made—a method scientific in nature and codified into law through procedural requirements,” Judge Brian Murphy wrote in his opinion. “Unfortunately, the Government has disregarded those methods and thereby undermined the integrity of its actions.”

Murphy’s order “stays” several key actions taken by Kennedy’s department—meaning that they are not fully prohibited, but rather they are put on hold as the legal proceedings fully play out. Judges in higher courts may not see things the same way; they could reverse some or all of Murphy’s ruling if the Trump administration appeals, as officials are already promising to do.

“HHS looks forward to this judge’s decision being overturned just like his other attempts to keep the Trump administration from governing,” HHS spokesman Andrew Nixon told reporters after the ruling.¹

The underlying legal issues here include genuinely complex questions about which powers the HHS secretary really has and the extent to which judges can or should determine what qualifies as an expert. It also involves questions over who has legal “standing” to bring a lawsuit like this. Murphy is a Joe Biden appointee, with a reputation as a liberal. It’s not at all hard to imagine conservative judges—including Trump’s appointees on the Supreme Court, if the case gets that far—ruling differently.

But Murphy’s order will help keep vaccines in the news. And that alone has important consequences, given how the politics around the issue seem to be shifting.

In just the last few weeks, the White House has taken a series of steps to get a tighter grip on operations at HHS, and to tamp down on some of the anti-vaccine rhetoric coming from Kennedy and his camp. It’s not clear whether Trump is having second thoughts about his full-throated endorsements of Kennedy. What is clear is that people around the president have gotten nervous that the anti-vaccine agenda is alienating the majority of voters who support vaccination strongly.

In short, Team Trump would prefer to change the subject. Murphy’s ruling makes that harder.

Which, perhaps, is appropriate. The debate here isn’t simply about whether Kennedy is making decisions in ways that comply with the law. It’s also about whether he is making decisions in ways that are good for public health. And this case highlights multiple ways in which he is not.

MURPHY’S RULING FOCUSES on two important, highly controversial decisions Kennedy made.

The first involves the Advisory Committee on Immunization Practices (ACIP), a group of up to seventeen outside experts who vote on which vaccines the Centers for Disease Control and Prevention should recommend. Service on the committee is voluntary, but it’s considered a big honor and appointees have historically had sterling, widely recognized credentials. Typically they have served staggered terms, with a handful coming on or leaving each year.

“The point of an advisory committee is that it’s not overly controlled by the incumbent administration—it’s not controlled by day-to-day politics,” Sam Bagenstos, a University of Michigan professor and expert on health care law, told me. “Instead, it’s driven by the outside expertise of people who actually worked in the field.”

The HHS secretary does have final say over who serves on the committee. But Kennedy has exercised that power in unprecedented ways—first by firing all of the committee’s sitting members at once, then by replacing them largely with people with histories of criticizing vaccines, vaccine mandates, or both.

Murphy, in his ruling, said Kennedy overstepped his authority, violating requirements of laws governing both the composition of federal advisory committees generally and the makeup of ACIP specifically. Murphy went on to state that the people Kennedy picked for the committee didn’t satisfy legal requirements that membership represent a “balanced” set of perspectives, drawn from people with relevant experience.

“This charter says we need people who are experts in vaccines, immunologists, public health, and so forth,” Dorit Reiss, a law professor and expert on vaccine policy at the University of California, San Francisco, told me. “When the judge looked at these people, he wasn’t looking at the question, ‘Are these people good people to be on the committee?’ He was asking, ‘Is the appointment process—and the credentials—in compliance with what the charter requires and what the law requires that