Tonight in Your Rights: RFK Jr. is reviewable
Here's why a ruling voiding Robert F. Kennedy Jr.'s anti-vaccine policies matters beyond the immediate public health consequences.
Early in his tenure as Secretary of Health and Human Services, Robert F. Kennedy Jr. stacked a committee that provides guidance on vaccines with friendly ideologues and removed crucial immunizations from the childhood vaccine schedule.
A federal judge voided those actions in a scathing and sweeping ruling on Monday evening, but the order establishes an important principle beyond the immediate benefit for the public health.
RFK Jr. is reviewable.
That is to say, U.S. District Judge Brian Murphy rejected an argument by Trump’s Justice Department that no court in the United States could second-guess RFK, Jr.’s decisions about public health policies.
‘Measles lunches’
In a little-noticed passage of the 45-page order, Judge Murphy quoted from a transcript from oral arguments that took the government’s arguments to its most absurd and dangerous conclusion. The passage quotes Murphy’s exchange with a government attorney about a series of hypotheticals.
THE COURT: … [L]et’s say that instead of revising the vaccine schedule, the CDC said, actually, we think measles is good for you; you should go have lunch with someone with measles, and we are sponsoring measles lunches in every city, come have some measles lunch, that would seem to -- that would seem to go right up against the goal of preventing communicable diseases. Would such a policy by the CDC be judicially reviewable?
[DEFENSE COUNSEL:] I think that would still be committed to agency discretion by law.
THE COURT: So even if what the agency was saying is we like communicable diseases and we think you should get more of them, that’s not judicially reviewable.
[DEFENSE COUNSEL:] No.
In another passage, Judge Murphy asked whether a court could review a recommendation that “you should get a shot that gives you measles.” The government answered: “No.”
By inventing what he called “somewhat ridiculous” examples, Murphy illustrated and rebuked the unrestrained power the government wanted to put in RFK Jr.’s hands.
“This argument can only be countenanced if one completely abandons the idea of objective fact, a nihilist endeavor this Court does not find appropriately read into Congress’s public health statutes,” he wrote.
The hypotheticals may be extreme but the consequences are real: The United States is now on the brink of losing its status as a country that eliminated measles, and there have been alarming outbreaks of meningitis and whooping cough.
In an interview with All Rise News, Michigan physician Rob Davidson celebrated the ruling for keeping a leash on RFK Jr.’s worst impulses.
“So to suggest somebody like RFK Jr., who has had a career built on disinformation about vaccines and about public health in general, that this individual would have the final word without any review — to me, it’s ludicrous medically, and I’m hoping it continues to be seen as ludicrous legally,” Robinson added.
‘Arbitrary and capricious’
Like other Trump administration policies, RFK Jr.’s revamp of the childhood vaccine schedule was stricken under the Administrative Procedure Act, a law protecting against “arbitrary and capricious” government actions.
Judge Murphy found that Kennedy tried to end-run the Advisory Committee on Immunization Practices (ACIP), established in 1964 to provide expert guidance on vaccines.
In June, RFK Jr. purged all 17 members of ACIP and summarily replaced them.
“[O]f the fifteen members currently on ACIP, even under the most generous reading, only six appear to have any meaningful experience in vaccines—the very focus of ACIP,” Murphy wrote, italicizing those words in the ruling.
Trump’s Justice Department vowed to appeal the ruling and attacked Judge Murphy, who ruled against the government in the past in so-called “third-country deportation” cases. In those cases, Murphy ordered the government to provide immigrants with notice, a hearing, and a chance to argue that they face the possibility of torture in countries selected seemingly at random from the global map.
The Supreme Court paused those decisions multiple times on the shadow docket without explanation, and an intermediate appellate court also issued a stay after his final order was issued. None of those courts has formally overturned his findings.
But Trump’s former lawyer turned Deputy Attorney General Todd Blanche used those rulings as a line of attack.
“We will keep appealing these lawless decisions, and we will keep winning,” Blanche wrote. “The question is, how much embarrassment can this Judge take?”
In the introduction of his ruling, Murphy quoted Carl Sagan to address popular distrust about science, drawing an analogy to the law.
“‘Science,’ like law, ‘is far from a perfect instrument of knowledge,’” Murphy wrote. “History is littered with once-universal truths that have since come under scrutiny. Nevertheless, science is still ‘the best we have.’”
Murphy called the 60-year-old body of law surrounding vaccine scheduling a marriage of science and law.
“For our public health, Congress and the Executive have built—over decades—an apparatus that marries the rigors of science with the execution and force of the United States government,” he wrote. “One extraordinary product of that apparatus has been the eradication and reduction of certain communicable diseases through the development and use of vaccines.”
Appellate courts may soon decide whether that apparatus will be replaced with RFK Jr.’s beliefs and whims.
Read the 45-page order here.
Look out for my interview with Dr. Rob Davidson on this ruling later this week on the All Rise News playlist on Legal AF.
In tonight’s legal news roundup:
Trump’s lawsuit against CNN over the phrase “Big Lie” fails again.
A judge orders the rehiring of purged Voice of America staff.
The accused Jan. 6 bomb plotter says he’s shielded by Trump’s pardon
