RFK Jr. Can Push Measles Herd Immunity in Theory, DOJ Says

A Trump administration lawyer said health secretary Robert F. Kennedy has “broad, unreviewable authority” to alter vaccine policy and could, hypothetically, recommend people get measles to achieve herd immunity if he believed that best served public health.

The example, prompted by a question from US District Judge Brian E. Murphy of Massachusetts, came amid medical and public health groups’ challenge to a second tranche of Kennedy’s vaccine policy shifts, including downgraded Covid-19 immunization recommendations for some, the proposal to remove a birth dose for the hepatitis B vaccine, and the reconstitution of a critical policy panel.

The government’s response distills the Trump administration’s central defense to the challenge brought by groups led by the American Academy of Pediatrics: the health secretary’s word on vaccine policy is final and public health policy disagreements have no place in a courtroom.

“Is it your position that it’s totally unreviewable?” Murphy asked Justice Department lawyer Isaac Belfer. “If the secretary said instead of getting a vaccine to prevent measles, I think you should get a shot that gives you measles. Is that unreviewable?”

Belfer confirmed it’s the government’s view that court’s can’t second-guess Kennedy’s policy discretion.

“If the secretary were to say, under my judgment herd immunity is the best way, that would be unreviewable,” he said, explaining the secretary isn’t bound by any law or regulation for how he goes about promoting public health.

If people disagreed, Belfer added, there are political and electoral pathways to register their opposition.

Irrational Departures

The legal battle over Kennedy’s vaccine moves, including the January changes to the childhood vaccine schedule, centers on whether the agency has to follow or at least adequately explain departures from past practices. Those include the Centers for Disease Control and Prevention’s engagement with the federal Advisory Committee on Immunization Practices. The government has countered that the groups want the court to “supervise vaccine policy indefinitely.”

The medical and public health groups claim Kennedy’s firing and refilling of that panel with people aligned with his immunization views is a violation of the Administrative Procedure Act, as are the secretary’s other vaccine policy changes.

Their attorney, James Oh of Epstein Becker & Green PC, said Kennedy’s discretion on vaccine policy isn’t “totally unfettered” and free from judicial review. He relied on the US Supreme Court’s unanimous ruling in INS v. Yang, where Justice Antonin Scalia wrote in 1996 that even agency discretion that’s “unfettered at the outset” can be reviewed by courts for “irrational departures” from policies.

Oh said Kennedy is, in fact, “fettered to a certain extent” by laws outlining the ACIP’s role in vaccine changes, regulations and the panel’s charter, which Kennedy himself signed on Dec. 3.

“The secretary recognizes by his own signature on the charter that this is a process and procedure by which vaccine recommendations should be made,” said Oh.

Murphy is being asked to vacate the changes to the childhood vaccine schedule, cancel the advisory committee’s next meeting on March 18-19, and enforcing changes recommended by the vaccine advisory panel. He acknowledged facing a “hard deadline” to issue a ruling in the case before the panel’s next meeting.

The judge said he believed ACIP’s status as an advisory panel subject to the Federal Advisory Committee Act was “pretty central” to his crafting of the preliminary rulings, but he said he was “struggling with how to square” the plaintiffs case with the high court’s ruling last year in Kennedy v. Braidwood Mgmt., Inc.

In that case the justices ruled the U.S. Preventive Services Task Force, a similar entity to ACIP, was empowered in 2010 to make binding recommendations. The judge requested briefing on whether the ruling changed whether the vaccine panel was covered by the advisory committee law.

Richard Hughes IV, also of Epstein Becker Green PC, told Murphy the ruling doesn’t put ACIP out of the law’s reach and its recommendations remain only advisory. Belfer agreed that the Federal Advisory Committee Act applies to the vaccine panel, seeming to settle the court’s concern.

The case is Am. Academy of Pediatrics v. Kennedy, D. Mass., No. 1:25-cv-11916, hearing held 3/4/26.