“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.”
Article 2, Section 1
The executive Power shall be vested in a President of the United States of America.
Another act by the Judicial Circus: One of their clan escaped the confines of adherence to written standards, saying to the Master Clown, your orders no longer apply and the ‘Judicial Clown Confederation’ has determined the Confederations review shall rule. In addition it has been considered, and thus ruled, that only Clown’s can rule on merits of authority, credentials or any other ambiguity that may occur. Please take not the escapee said: our member Clowns know everything about nothing, but indeed you’ll find solace that our orders will warn you while you’re on the road to Prediction.
Speaking of redundancy Edna St, Vincent Millay may have had it right:
“It’s not true that life is one damn thing after another-it’s one damn thing over and over.”
OT
“I’ll always be grateful for President Bush for appointing me… but [a justice’s] responsibility goes beyond expressing gratitude or offering any favor to an appointing president.”
“The notion that we carry forward the views of the people who appointed us is absurd.”
“The idea that I’m carrying out his agenda somehow is absurd.”
– John Roberts
__________________
Absolutely, you do not carry forward the views of George Bush.
You carry forward the views of Karl Marx.
“But personally directed hostility is dangerous and it’s got to stop.”
– John Roberts
__________________
It’s quite acceptable for the judicial branch to “interpret” and amend the Constitution and to “fundamentally transform” it into the Communist Manifesto when the sole power vested in that branch is to judge—to form an opinion about through careful weighing of evidence and testing of premises—but citizens may not state that they are fully aware of the incorrect, partial, illicit, corrupt, and unconstitutional decisions that have been made for centuries by the judicial branch, with emphasis on the Supreme Court, for example, Roe v. Wade, Boasberg et al., and express their ire at the rights, freedoms, and nation that have been stolen from them, but they must, in fact, “stop” as per orders from someone with no power to abridge the freedom of speech and press of any individuals, understanding that defamation is speech.
So now it’s a problem for committees to have nay-sayers? you put a bunch of people who all agree in the same room, that’s not a committee, that’s a circus. IMO, investigatory and committee groups SHOULD have skeptics, nay-sayers, and rational rejectionists on them. Better to have 1 of 12 Angry Men be overruled while still letting him speak (rational skeptics can make some of the best arguments against idiocy), than having 12 Happy Yes Men who push something through without thought of impact.
Speaking of, no more of this BS democrat huffy leaving in the middle of their own committee hearings. You were assigned that seat. Either sit in it, or tell your constituents to primary you.
The U.S. Department of Health and Human Services (HHS) and the CDC, FDA, and NIH may not be taxed for or regulated per Article 1, Section 8.
They are unconstitutional and entirely bereft of any citable legal basis in the Constitution.
Interstate commerce.
Commerce is limited and restricted to only the buying and selling, or the exchange.
___________________________________________________________________________________________
Article 1, Section 8
The Congress shall have Power To…regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes;….
___________________________________________________________________________________________________________________________________________________
Merriam-Webster
commerce
2: the exchange or buying and selling of commodities on a large scale involving transportation from place to place
_____________________________________________________________________________________________________________________________
Cambridge Dictionary
commerce
the activities involved in buying and selling things:
________________________________________________________
Oxford Dictionary
commerce
The exchange of merchandise or services….
Portraying himself as a staunch pacifist at his Senate confirmation hearing on Wednesday, DHS nominee Markwayne Mullin said that anyone who claimed he had anger-management issues would get “kicked in the face.”
“I believe that every dispute should be settled peacefully,” Mullin said. “And if anyone questions my sincerity about that, I’ll shove my fist down their throat and tear out their lungs.”
He took issue with Sen. Rand Paul’s characterization of him as someone who advocates political violence, stating, “Say that again, Four Eyes, and I’ll rip off your stupid goggles, grind them under my shoe, and make you eat the glass.”
In a boost for the nominee, outgoing DHS Secretary Kristi Noem endorsed the Oklahoma senator, asserting, “Markwayne Mullin has what it takes to fulfill all my duties, including killing defenseless pets.”
Is he the judge in the Kennedy case?
His Majesty King John Roberts’ Juristocracy.
In Texas, even though judges are elected and run as Democrat, Republican or Independent, I rarely– very rarely– have had a judge’s politics injected into a case. It is too bad that no longer is true on the federal level. Perhaps one of the most damaging things to our country that President Biden (or those around him) did was appoint ideologues to the federal bench (including the Supreme Court). If you can tell a judge’s politics by how he or she rules, that person has no business being a judge. Unfortunately, barring impeachment or resignation, the term of these picks is lifetime.
The Framers and Founders precisely wrote the very words they intended in the Constitution.
They omitted and excluded the word “interpret,” aka amend, while there is a phrase regarding “judicial power,” or the power quite simply to judge.
Merriam-Webster
judge
verb
1: to form an opinion about through careful weighing of evidence and testing of premises
Kennedy’s committee did made arbitrary and capricious decisions. That is a violation of federal law. Not that complicated. This is not a constitutional issue at all.
With so many members of today’s judicial system determining at their whim, it is a reasonable to ask: what will be the result when one of these judges [or ‘cases’] takes it too far? In due time, taxes at the various levels could be ruled upon, creating further political and social chaos.
Murphy, Boasberg, Xinis, et al. All reversed in their anti-Trump rulings.
Retaliatory pathos, by human nature, is what it is.
When a judge like Murphy or Boasberg issues an injunction, it’s usually because the government skipped mandatory steps—like the notice-and-comment periods required by the Administrative Procedure Act. If an administration tries to bypass 100-year-old laws or ignores active court stays (like the ‘Djibouti flight’ incident), a judge is legally obligated to step in.
Being reversed by the Supreme Court doesn’t prove bias; it just shows a disagreement over the limits of Executive Power. In fact, since the Supreme Court repealed Chevron deference, they’ve actually ordered lower courts to be more skeptical of agency experts and to scrutinize their legal authority more strictly. Murphy is literally doing exactly what the current SCOTUS told him to do.
X is the poster child for retaliatory pathos.
you hum-haw when a dem judge gets overturned, but praise to the heavens when their initial ‘rulings’ happen, or when a non-dem judge rules against Trump. Then you call SCOTUS a blight on humanity and a threat to ‘muh democracy’ when they ultimately say nay-nay.
make up your damn minds, troglodytes.
Usually? That is categorically wrong. I have knowledge of all of Boasbergs cases. Murphy not.
Murphy has an obligation to learn and know the science, which is impossible for him to acquire.
Secondly, he accessed input from 3rd party sources (Friend of the Court) he acquired a degree of scientific knowledge.
The sole issue in this case should have been, did HUS have the authority to set the vac schedule. They do.
The judgment is smothered in superfluous detail; intend to justify the decision. It does not.
Defendants will seek redress via SCOTUS and win.
Agree with, a friend. AFOTC
Murphy also forced clarification. He wants a scotus job?
There’s your dumbass BS! Again! Radical leftest stooge spouting off!! No one is listening!!
I’m not a leftist, anon. Far from it and am conservative. Reason Murphy needed clarification is? I’m interested in your opinion.
Instinctual behaviors
Careful, professor, or Roberts will criticize you for noticing the lunacy of district court judges.
SO a couple of: Lazy, Entitled, Self-Aggrandizing, Privileged, Medical Morons … of the Blue Ribbon Panel got upset when Robert F. Kennedy Jr. replaced and ousted their asses onto the street, wherein they rightfully belonged, and called upon their equally; Entitled, Self-Aggrandizing, Privileged, Judicial Moron to reinstate them. No doubt with heavy punitive damages for Their embarrassment for being called-out by the: Secretary of the U.S. Department of Health and Human Services, Robert F. Kennedy Jr..
Not a One of Them has had to withstand One-Hundredth of a Percent of the widely publicized humiliation RFK Jr. has.
The Swamp – The bottomless pit of depravity.
The premise of American freedom is that we want maximum individual freedom and individual choice – as long as one person’s exercise of freedom doesn’t violate or harm anyone else’s freedoms or rights.
At best, the vaccine issue is very complicated. Children that are unvaccinated in a school (exercising the freedom of choice of their parents) could also be harming other children in the process (measles, smallpox, polio, etc).
So in this example of school children, one individual’s freedom could infringe on other people’s rights to protect their children. Maybe unvaccinated kids could home school in that scenario, so they don’t harm other kids?
Maybe kids with peanut allergies should home school.
These fanatic judges, who adhere to a progressive ideology as their lode star, remind me of both the Christian Flagellants who would sacrifice their senses to commit to an ideology, and to the islamist jihadists who would fly planes into buildings for the sake of their religion. It is quite clear that progressivism is a cult “religion” of sorts that fills that constant void in humans, since the beginning of sentience, that needs an explanation, a plan, a comfortable feeling that gets them through the long dark nights of 3 score and ten. Any hope that logical discussion with anyone under the full sway of progressive ideology should be left at the door as these are people convinced of their rectitude and see any alternative ideology as evil and they spread their hate upon it with the same relish as with those who sent heretics to the bonfires and subversives to the guillotines.
Progressives = Christian Flagellants? That’s your argument? What religious sect do you belong to? MAGA?
What does it take for a judge to be disbarred?????
The only way to get rid of popinjays is via impeachment in the House and conviction in the Senate.
There is a second way, but nobody wants to admit that our balance of powers has been usurped by a fourth, non-federally elected/appointed (by the people and their reps) branch, to which there is only one recourse.
“(W)e never really had a national debate about these issues[.]”. That is the problem with a political culture. Policy issues are not debated in public. Someone in government (usually unidentified) makes a decision that we need something and the rest of the government goes along with the decision. That is how the people using the name “Joe Biden” governed for four years. That is how Trump is getting us into a war in the Middle East.
The law and constitution are the legitimate domain of the courts.
Science is NOT.
The construction doesn’t regulate law and law doesn’t regulate medical or legal licensing?
You’re welcome.
“The construction doesn’t regulate law”
Swallow another handful of fentanyl, loser.
Thanks john say.
The law does not regulate diverse medical OPINION. Your comment has nothing to do with anything, and is false.
John Say, did you forget about the repeal of the Chevron deference?
The Supreme Court just ruled in Loper Bright (repealing Chevron) that courts must be the final authority on technical and scientific regulations. The old rule was that we should defer to the scientists at the agencies. Now, the Supreme Court says judges have the ‘province and duty’ to decide if an agency’s science-based rules are legal. You can’t argue that science is ‘not the domain of the courts’ when the current SCOTUS just moved the goalposts to make sure it is.
No it did not rule that. Again you prove you are incapable of understanding legal rulings.
Source: Hoganlovells.com: “SCOTUS wrote that courts must exercise their independent judgment in interpreting federal statutes and may no longer defer to agency interpretations simply because a law is ambiguous. The Court ruled that the Administrative Procedure Act (APA) requires courts to decide statutory meaning, not defer to agencies.”
LOL! You’re quoting a source that confirms my point. Hogan Lovells correctly notes that judges now have the duty to independently interpret what an agency can and cannot do. That is precisely why Judge Murphy is reviewing RFK Jr.’s actions. He isn’t ‘deferring’ to the agency’s claim that they can skip procedures; he is exercising the ‘independent judgment’ your own source says the Supreme Court now requires.
What’s the idea about the deported people to South Sudan, John Say?
Some here have access to lower courts opinions etc not that I could wade through them. In abrego case he was put in 1 year holding CECOT without trial and conviction? True?
My interest ^^^ is very narrow. I don’t think García should have ever been in the US for instance. My interest is deport to a prison without trial.
“Murphy dismisses [Dr. Pollak] as lacking sufficient experience.”
To the Left, the word “expert” means: You agree with me. “Non-expert” means: You disagree with me.
It is an utterly subjective, propaganda-driven use of the word “expert.”
So what makes Judge Murphy an expert on the subject law to make his own judgment? Who regulates the regulators, this is glaring overstepping his boundaries and authority. He is an activist and should be removed.
Expert,? Well, an appointment by a president as direct court judge and an army of liberal lawyers supporting him. And democratic lobbyists.
I thought everyone understood that Biden was not competent to qualify as a President.
Judge Murphy is an expert – an ‘ex’ is a has been, a ‘spurt’ is a drip under pressure, so, he’s a has-been drip under pressure
Sam, SCOTUS got rid of the Chevron deference. It doesn’t matter that murphy lacked experience. Republicans created this new precedent. Judges CAN decide 100% if the science is not right. No expert opinion needed.
It did not “get rid of”, it overruled. Know the difference?
Lucky for you, decorum prevents me from calling you a stupid twat.
Ah, the classic ‘I’m too classy to call you names while calling you names’ maneuver from anonymous.
If we’re splitting hairs to feel superior: Overruling a precedent is exactly how the Supreme Court gets rid of a legal doctrine. It’s no longer functional law. Whether you use the Latin or the layman’s terms, the result is the same: Chevron is dead, and the Court officially handed judges the keys to oversee agency science.
But hey, if focusing on a thesaurus helps you ignore that your own source backed up my point, carry on. I’ll leave the ‘decorum’ to you since you’re clearly working so hard at it
Have you figured out why state taxes are not pass throughs yet?
I’ll say it for you!!
This case gives me the impression that a judge in Boston is automatically given scientific and medical credentials that are unearned. Judge Murphy appears to be making his own interpretations on medical issues to reach his conclusions. Or maybe it’s just Murphy’s Law, as you said.
Again, SCOTUS nullified the Chevron deference doctrine. Meaning Judge Murphy is absolutely able to make interpretations on medical issues to reach a conclusion.
Thank the SCOTUS conservative majority.
Wrong-Chevron was a rebuke of the regulatory agency by the SCOTUS of being accuser, judge and jury. The Executive does have authority over all the positions under its authority.
Anonymous, you’re hilarious.
First, Chevron wasn’t a ‘rebuke’ of agencies being ‘accuser, judge, and jury’—that’s a different legal concept entirely. Chevron was actually a gift to the Executive branch because it forced judges to stay out of their way. By overruling it, the Supreme Court did the exact opposite of what you’re claiming: they told judges to stop deferring to the Executive and start policing them.
Second, ‘Executive authority’ doesn’t mean the President can just ignore the laws Congress wrote. The Federal Advisory Committee Act (FACA) and the Administrative Procedure Act (APA) are actual statutes that dictate how committees are formed and how policies are changed. The President can hire whoever he wants, but he can’t hire them in a way that breaks the law.
So, while you’re busy lecturing me on ‘decorum,’ the Supreme Court literally just gave Judge Murphy the green light to scrutinize every technical move RFK Jr. makes. If you’re mad about a judge ‘interfering,’ take it up with the 6-3 conservative majority that ended Chevron deference and told him to do exactly that.
Kevin Beck,
Perhaps they should sue the judge for medical malpractice?