“Anything that can go wrong will go wrong.” That adage, called Murphy’s Law, came to mind this week with the latest injunction issued by U.S. District Court Judge Brian Murphy in Boston. Murphy previously drew national criticism for his efforts to enjoin Trump’s immigration policies, resulting in not one but two rebukes from the Supreme Court. He is now back with an order preventing changes to vaccination policies ordered by Health Secretary Robert F. Kennedy Jr.
As with his earlier immigration order, the court seems to take the view that anything that can go wrong for the Trump Administration will go wrong for the Administration. At virtually every critical point, the court seems to adopt the harshest possible interpretation against the Administration.
Murphy effectively halted, for now, the meeting of Kennedy’s new Advisory Committee on Immunization Practices, or ACIP.
Kennedy had replaced many members of the ACIP, including some accused of conflicts of interest.
However, Murphy found that Kennedy had made arbitrary and capricious decisions in changing vaccine policies and changing the committee membership.
The Trump Administration has been aggressively fighting for executive authority over agencies, boards, and committees. This case could become one of the most significant of these appeals.
Judge Murphy basically lambasts Kennedy for attacking good science and scientific methods. His criticism is laden with assumptions about the “correct” answers to questions governing vaccines.
There are good-faith objections to Kennedy’s policy changes. However, the question is who is constitutionally vested with the right to make such decisions.
That question is particularly prominent in the Murphy opinion. For example, the court rejects the new board members as unqualified in comparison to the prior members. The court’s rejection of the new board members is largely conclusory. The court offers little indication of who Kennedy might appoint to meet his standards … other than the prior board members placed on the committee during the prior administration.
In determining whether Kennedy had a right to reconstitute the committee, the opinion states that “[t]he Court acknowledges that many of the ACIP members have extensive expertise in their chosen fields.” However, it then questions whether they have truly “relevant” experience. The court insists that only six have relevant experience with vaccines.
The rejection of individual advisers shows how the court dismisses countervailing credentials or belittles advisers selected by the Secretary.
Take Dr. Raymond Pollak who “is a surgeon, transplant immunobiologist, and transplant specialist who has published more than 120 peer-reviewed works and served as principal investigator on NIH transplant biology grants and numerous drug trials.” That would seem to be someone who could offer unique insights into vaccines and their approval. Yet, while acknowledging some experience, Murphy dismisses him as lacking sufficient experience.
Then there is Dr. Retsef Levi, Professor of Operations Management at the MIT Sloan School of Management, as “a leading expert in healthcare analytics, supply chain and manufacturing analytics, risk management, and biologics and vaccine safety” and note that he has “collaborated with industry stakeholders and public health agencies to develop decision-support models to evaluate biologics and vaccine safety” and co-authored studies examining the association between mRNA COVID-19 vaccines and risks of cardiovascular disease, mortality, and adverse pregnancy outcomes.” He has also published two papers on vaccines. However, Judge Murphy brushes aside that stellar academic record and notes that “both of those [vaccine papers] were published mere months before his appointment.”
Likewise, Case Western Professor Catherine Stein is viewed as lacking sufficient experience despite being “an epidemiologist with more than two decades of research experience on tuberculosis and infectious diseases and 115 peer reviewed publications.”
Well, you get the idea.
Judge Murphy then concludes:
“As to that specific function, the newly appointed members appear distinctly unqualified. A committee of non-experts cannot be said to embody “fairly balanced . . . points of view” within the relevant scientific community. See 5 U.S.C. § 1004(b)(2). It is more accurate to say that they do not represent points of view within the relevant expert community.”
Note how the court is using a largely undefined term of “fairly balanced” under the Federal Advisory Committee Act (FACA) to allow it to micromanage the makeup of an advisory committee to the Secretary. The court notes that, rather than taking years, “on the current record, the most generous description of the appointment process is that it took a few months and involved some limited outreach to candidates.”
This suggests that the Court would also reject the chosen advisers not only for who they are but also for how they were selected. He then uses the failure to follow the traditional approach under FACA as the basis for declaring the reconstitution “arbitrary and capricious.”
Yet it is the judge’s dismissal of these members’ records that comes across as distinctly arbitrary and capricious. Kennedy stated that he wanted a new committee with a variety of experiences to reexamine the approach to vaccines.
The almost uniform default against the Administration in interpreting these standards is reminiscent of Murphy’s prior effort to halt the Administration’s immigration policy changes.
The Supreme Court reversed his decision in a clear rebuke of both his methodology and conclusions. However, Murphy then issued new orders directly contradicting the Court’s prior ruling. That drew a rare clarification of its earlier opinion lifting the injunction on the deportation of immigrants to third-party countries.
The Court quickly disabused Judge Murphy of his belief that he could continue to micromanage the immigration process and declared that he was not in compliance with its order.
What was most remarkable, however, was the sharp concurrence by Justice Elena Kagan who, despite voting against the original order, called out Murphy for defying the authority of the Court. Only Justices Sonia Sotomayor and Ketanji Brown Jackson took his side in dissent.
In the new opinion, the justices made clear that their June 23 order applies fully to the eight immigrants in U.S. custody in Djibouti.
Regardless of your views on the merits, this system cannot function with such rogue operators at the trial level. In responding to Murphy’s later order saying that his orders governing the eight men would remain in effect, the Court declared that “the May 21 remedial order cannot now be used to enforce an injunction that our stay rendered unenforceable.”
Murphy even lost Kagan in the action. She stuck to principle and said that she was on the losing side of the original issue when “a majority of this Court saw things differently.” However, she concluded that “I do not see how a district court can compel compliance with an order that this Court has stayed.”
What is most striking is how judges like Murphy showed overwhelming deference to such experts during the COVID-19 period, despite some of those policies later being found not to be based on sound science.
Indeed, some of the very same people today who are calling for Kennedy’s head were part of the mob denouncing dissenters in the scientific community, or those who remained silent as scientists were fired, censored, and cancelled.
The most anti-science position was to demand compliance with the orthodoxy of the pandemic years. Take Jay Bhattacharya, who co-authored the Great Barrington Declaration and was a vocal critic of COVID-19 policies.
Bhattacharya is now the 18th director of the National Institutes of Health and is working with Kennedy to change the culture of groupthink among health researchers and government regulators.
Bhattacharya was censored, blacklisted, and vilified due to his opposing views on health policy, including opposing wholesale shutdowns of schools and businesses. He was recently honored with the prestigious “Intellectual Freedom” award from the American Academy of Sciences and Letters.
He was one of many who were blacklisted for challenging pandemic policies. It did not matter that positions once denounced as “conspiracy theories” have been recognized or embraced by many.
Some argued that there was no need to shut down schools, which has led to a crisis in mental illness among the young and the loss of critical years of education. Other nations heeded such advice with more limited shutdowns (including keeping schools open) and did not experience our losses.
Others argued that the virus’s origin was likely the Chinese research lab in Wuhan. That position was denounced by the Washington Post as a “debunked” coronavirus “conspiracy theory.” The New York Times Science and Health reporter Apoorva Mandavilli called any mention of the lab theory “racist.”
Federal agencies now support the lab theory as the most likely based on the scientific evidence.
Likewise, many questioned the efficacy of those blue surgical masks and supported natural immunity to the virus — the government later recognized both positions.
Others questioned the six-foot rule, which shut down many businesses, as unsupported by science. In congressional testimony, Dr. Anthony Fauci recently admitted that the rule “sort of just appeared” and “wasn’t based on data.” Yet not only did it result in heavily enforced rules (and meltdowns) in public areas, but the media further ostracized dissenting critics.
Again, Fauci and other scientists did little to stand up for these scientists or to call for the protection of free speech. As I discuss in my book, “The Indispensable Right,” we never really had a national debate on many of these issues, and the result was massive social and economic costs.
The point is that these attacks were “turning your back on science” by crushing dissent and stopping any meaningful debate on these issues. These same figures were wrong on the science, but now seek to lead another mob to impeach those seeking to change policies and practices at HHS and NIH.
Kennedy and his colleagues are seeking to reform the public health system to achieve greater diversity among experts and address conflicts of interest that were concerning in this system.
Judge Murphy seems to say that you can have your own advisers so long as they pass muster with me… and I liked the old advisers.
He vests himself with this authority by largely reading every ambiguity against the Trump Administration. It is Murphy’s Law: if anything could be used against the Trump Administration, it will be used against the Administration in the court of Judge Brian Murphy.
Here is the opinion: Murphy’s Opinion
Jonathan Turley is a law professor and the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
Any agency that recommended Covid inoculations for children needs to be disbanded, maybe even run out of town on a rail.
I cringe when think about how pathetically unknowledgeable our so-called health-care journalists were covering COVID. Starting out, not much was known except that Chinese and northern Italians were dying of a SARS-like respiratory failure, and there were daily flights between those two nations. Based on the timing of the outbreaks, it started in China and spread to Italy.
It was the beginning of a US Presidential election year, and Trump was in his 4th year and committed to running for re-election. Any early campaign tactic some Democrat operative came up with was to personally blame every COVID death on President Trump — as if he had a magic wand capable to preventing disease and simply refused to wield it!
That criticism was outlandish and absurd by past standards of critical thinking about unknown epidemics. I was aghast that Democrats did not denounce it as beyond the pale, because I knew that politicizing an epidemic as a campaign tactic would close minds off to learning and adapting wisely, and open the floodgates to infowarfare rather than meritocratic debate.
Can you imagine being a public official at that time, and seeing accusations of “you’re killing people” loosely lobbed in your direction?
You couldn’t say the truth, which was “7500 Americans die every day of differing causes including respiratory failure, and it’s not going to be possible to interrupt that natural process. Let’s not all of a sudden pretend public officials have magic powers to prevent deaths that we don’t possess”.
Or “Finding a sensible path to navigate this epidemic will be hard enough without casting blame on public officials for deaths.” Though common sense, to have said that would have just been labelled as “being OK with deaths”. The stupid ruled in that manner given a voice by social media. Mature adults of good mental health were no longer in control of the national conversation. I cringe at how childishly some Americans behaved.
Loved the lock down and business bankruptcy. Lost your freedom?
The Left ruins everything it touches. Usually it does this by politicizing the thing it marks for ruination. The law is an example of this. But others spring to mind, such as sports, movies, late-night comedy, public education, academia, and journalism.
It’s chaos and they don’t stop. People are leaving congress and going back to their States as governors and hopefully mayors, council people , AGs to reclaim some space if possible. Imo
People like KBJ , BLM want an invasion and destruction of the United States to right wrongs as they see it. Imo
This is one of the most strongly worded pieces by Prof. Turley I have ever read. One could almost reach the opinion that he is getting a bit miffed about how some of these judges are so blatantly displaying their biases against Trump and his administration.
As a mere layman I do not have to be so diplomatic in my opinions.
Epsteino!
“Labor organizations drop Cesar Chavez celebrations after sexual abuse allegations”
“An investigation, released by the New York Times, found that Chavez allegedly raped and molested several underage girls, grooming some beginning when they were eight or nine years old. He was also alleged to have raped several women and allies, such as Dolores Huerta, his most prominent female ally in labor activism.”
– Washington Examiner
When will Donald Trump be held to the same standards ??
I am waiting for Donald Trump to be held to the same standards .
“Why didn’t you tell Japan about the beginning of the war in Iran?”
– Japanese Reporter
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“We wanted surprise.”
“Who knows better about surprise than Japan?”
“Why didn’t you tell me about Pearl Harbor?”
– President Donald J. Trump
Maybe it’s because neither of them was alive when Japan bombed Pearl Harbor?
It’s dictatorship. Dictatorship by any means is still dictatorship. Free societies can not exist with dictators of any kind, type, or affiliation.
One-man, one-vote democracy.
It’s the “dictatorship of the majority” and the majority is poor; the working class; the proletariat.
Wait! That’s the very communism of Karl Marx: “From each according to his ability, to each according to his needs,” by order of the Politburo.
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The vote in a democracy has been restricted since inception; democracy will crumble without restrictions on the vote.
I strongly support voting rights and don’t see how giving the people the right to vote in Federal, State, and local elections as we do in amendments 15, 19, and 26 can be linked to communism.
There is a connection. When giving the vote to persons who are just emerging from economic dependency (slaves, 1920s women, 18-year-olds), these new voters have not yet had time to develop as fully independent economic actors in a free market system. It’s natural that they will then favor government policies that provide free services, income support, free health care and other social benefits.
The solution is not to disenfranchise these adults. It is to prepare young adults starting early to become contributors and earners, and to reward them for responsibility-taking — at as early an age as possible.
That way, as voting 18-year-olds, they will appreciate how policies that make the citizenry more dependent on government for sustenance work against prosperity and progress.
The Founders intended the restricted vote of honorable and successful people to accurately enforce and perpetuate the Constitution and Bill of Rights.
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“the people are nothing but a great beast…
I have learned to hold popular opinion of no value.”
– Alexander Hamilton
__________________________
“The true reason (says Blackstone) of requiring any qualification, with regard to property in voters, is to exclude such persons, as are in so mean a situation, that they are esteemed to have no will of their own.”
“If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote… But since that can hardly be expected, in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, whereby, some who are suspected to have no will of their own, are excluded from voting; in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.”
– Alexander Hamilton, The Farmer Refuted, 1775
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“[We gave you] a [restricted-vote] republic, if you can keep it.”
– Ben Franklin, 1787
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You couldn’t.
Of course you would count yourself among the honorable people elegible to vote . 🤣. It’s a shame you cannot see the fallacy in your logic. You’re a snob .
I’m confused. Is this article about third country deports or Kennedy’s board?
I have a dream that one day all writers will state the proper title of each case before discussion and MSM might do that too. 😔
Are you really that dumb?
Must be and here to learn from the courteous souls frequenting this place. Thank you.
Which expertise (or maybe even experts) did the judge consult to come up with such an argument against members of a much more educated committee than himself? If we allow such rogue judges to operate the way Murphy does, why even need a committee of experts? If I have to guess this is partisan nonsense and may even be due to the judge speaking from inside the back pockets of the industry that lost all their stewards in these committees. Impeach him.
The committee was not more educated, that is part of the point.
All this tells me is that Biden or Obama appointments were just more leftist boosheet (and we are stuck with them), and that they will lock us down for the most trivial of justifications again in the future if they are in the position to do so.
This should also be, to sentient and thinking people, what will happen to our courts if dems ever again have majority power. Talking about them as though they are somehow still fair players is ridiculous.
I appreciate the Professor’s magnanimity, but really, look very directly at who you are talking to. they don’t care, and they will subjugate us with barely a nod. Even a storied Professor is not getting out of that.
Wake up.
You might recall that Kennedy explained that the removal of prior ACIP members was primarily focused on conflicts of interest, after which Kennedy published more stringent rules for future membership, and reasoned it was necessary for stewardship to develop more varied opinion in the best interest of public health recommendations.
Just prior to leaving office, in January 2025, Biden added 8 new members and expanded the total ACIP membership from 15 to 19.
I invite others to look at the attached:
https://www.vacsafety.org/with-little-fanfare-biden-administration-stacked-vaccine-advisory-committee-with-new-members/
Also,
In this piece below, you can move down to the section outlining the credentials of those removed, starting with “Former ACIP Member COIs – At a Glance.”
https://publichealthpolicyjournal.com/was-firing-acip-the-right-move-former-acip-member-conflicts-of-interest-details-emerge/
“Just prior to leaving office, in January 2025, Biden added 8 new members and expanded the total ACIP membership from 15 to 19.”
He was looking to Big Pharma for lucrative retirement funding…
Nonsense . The members replaced by Kennedy had few ties to big pharmaceuticals . Yet many of those appointed by Kennedy were vaccine skeptics and many tied to his children’s defense fund a vaccine skeptic organization . It seems that was his criteria for selecting them .
You might want to read this article before opining . What Kennedy appointed was vaccine skeptics like himself . Conflicts of Interest on CDC Vaccine Panel Were at Historic Lows Before RFK Jr. Dismissalhttps://schaeffer.usc.edu/research/cdc-acip-vaccine-conflicts-rfk-jr/