DOJ Lawyer: RFK Jr.’s Authority Shall Not Suffer Any Checks & Balances From The Courts

I’ve spent a lot of digital ink detailing just how bad RFK Jr. has been in his post at HHS. Everything from his attempts to entirely remake vaccine policies in the country, to his neutered response to the ongoing measles outbreak in the country, up to and including his attempts to strong-arm the entire federal health workforce into following his tinfoil-hat theories has been horrible for the country. Fortunately, because we live in America, we have a way to check his power. There are checks and balances in place here and one of those places is the United States court system which…

…the US Justice Department apparently thinks Kennedy is entirely immune from.

A lawyer for the Trump administration told a federal judge Wednesday that anti-vaccine Health Secretary Robert F. Kennedy Jr. has such ample authority over the country’s vaccine policies that he is “unreviewable.” His unfettered powers even allow Kennedy the freedom to recommend, if he chose to do so, that people ditch vaccines and actively expose themselves to infectious diseases, the lawyer argued, according to Reuters.

US District Judge Brian Murphy overseeing the case in Boston appeared skeptical of the suggestion that Kennedy has seemingly limitless authority over federal vaccine policy.

“Is it your position that [Kennedy] is totally ​unreviewable?” Murphy asked Belfer, according to Reuters. “If the secretary said instead of getting a shot to prevent measles I think you should get a shot that gives you measles, is that unreviewable?”

“Yes,” Belfer replied.

Well, I certainly appreciate Judge Murphy for putting as fine a point on this whole thing as possible. Still, I don’t expect this argument to land particularly well with the very court system that would be involved in the reviewing of what the DOJ is arguing is “unreviewable.”

The context for all of this is a lawsuit brought by the American Academy of Pediatrics and other medical groups seeking an injunction barring several of HHS’ altered vaccine policies. This challenge is being made under the Administrative Procedure Act, which charges the court as responsible for the following when a legal challenge is made.

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall-

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be-

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

And, yet, despite that law describing precisely how the courts shall review federal agency actions upon legal challenge, the DOJ is explicitly saying that HHS’ and Kennedy’s actions are “unreviewable”. It makes no sense.

Belfer, arguing on behalf of the Department of Health and Human Services, said the medical organizations were merely seeking to use the courts to enact their favored vaccine policy. But the lawyer for the groups, James Oh, countered that the vaccine policy changes—which were not carried out with typical processes and lack supporting scientific evidence—were done improperly and without reasoned decision-making.

Kennedy’s vaccine policy changes are the “actions of someone who believes he can do whatever he wants,” Oh said, according to Stat News.

Put more precisely, the complaint is that Kennedy seems to think he can enact whatever policy he wants without following proper procedure or evidence-based decision making. That’s what APA allows these medical groups to challenge and that’s exactly what they’ve challenged in this particular lawsuit.

The DOJ suggesting Kennedy is above such checks and balances is purely make believe.