MedPage today story.
President Trump has said he will take health agencies in a new direction on the campaign trail and has selected several controversial candidates to help him achieve his goal, including Robert F. Kennedy Jr., Trump's pick to be HHS secretary.
However, it remains unclear what might actually change if Kennedy is confirmed. To answer this question, MedPage today spoke with legal experts, former CMS and White House officials, and others who have worked alongside health care agencies to assess the potential for significant reforms at HHS and its subagencies.
Can Kennedy fire employees of the FDA and other agencies?
In October Kennedy published on X that “the FDA's war on public health is about to end.” He criticized the agency's “aggressive crackdown” on a range of unproven treatments, including ivermectin and hydroxychloroquine, and warned: “If you work for the FDA and are part of this corrupt system, I have two messages for you: 1. Save your records and 2. Pack your bags.”
If Kennedy is confirmed as HHS Secretary, will Kennedy have the authority to overhaul the FDA and clean up “entire departments,” as he said? said he planned do? Lawrence Gostin, J.D., a professor at Georgetown Law School in Washington, D.C., said Kennedy has “vast powers” to overhaul the federal workforce, but they are not unlimited.
He may get some help from Trump, who issued an executive order reclassify a certain federal employee positions in a way that makes it easier to fire at them at will, Gostin said. This order is aimed at restoring Decree 2020which Biden revoked his powers in January 2021.
Government employees have the right to public service and whistleblower protection, Gostin said. “They may publicly complain of malicious intent” and would likely face “a real legal challenge” if they sue, which could at least delay the reclassification process.
In April, President Biden's Office of Personnel Management issued a final rule prohibiting this type of reclassification. If the president wanted to “follow the letter of the law,” he would have to rescind the previous rule, which includes giving notice, holding a hearing and having “good cause” for such a revocation that could withstand legal challenges, Gostin said. “I think [Trump] may eventually succeed if he persists,” but he may also abandon the effort if enough government employees retire or leave on their own accord.
Stephen Balla, Ph.D., assistant professor of political science at George Washington University in Washington, D.C., said MedPage today“I am convinced that much of this is rhetoric designed to demoralize and reduce the federal workforce through ‘voluntary’ resignations.”
Gostin said the only “real test” of Trump's power lies with centers or units that have statutory functions, meaning their funding or authority comes directly from Congress. In such cases, Trump and Kennedy will need help from Congress to repeal or eliminate these functions. “But if we are simply talking about reorganizing the structure of the agency, [Kennedy] has quite broad powers to do this, and this is alarming,” he added.
Ashish Jha, MD, dean of the Brown University School of Public Health in Providence, Rhode Island, and former White House COVID-19 response coordinator under Biden, agrees with Gostin. “It will definitely be able to reorganize … but it will be difficult to close entire agencies,” he said.
Tom Sculley, JD, who served as CMS administrator under President George W. Bush, said it would be a good idea to cut at least one of the agencies a little. “I've been through [CMS org chart] and there are offices that I had never heard of when I was there 20 years ago,” he said. MedPage today.
Sculley, who considers himself a “fairly moderate Republican,” said that if he were in government now, he would probably eliminate 25% of the offices he saw on the organizational chart.
On the other hand, the Trump administration's efforts to require all federal employees to report to their offices 5 days a week could have the unintended consequence of potentially leading to early retirement, he added.
“Some people will say, 'Great.' I would say, 'It depends,'” said Sculley, now director of the Washington-based consulting firm Federal Health Policy Strategies. “If you lose good people, you will have problems.”
Could Kennedy suspend infectious disease research and divert half of the NIH funding to comprehensive health care?
At the 2023 anti-vaccine conference, Kennedy, who was still running as an independent presidential candidate, said he would tell NIH scientists“Thank you for [your] public service. We're going to give infectious diseases a break for about 8 years.” editorial September 2024 For Wall Street Journalin which he endorsed Trump for president, Kennedy proposed that half of the NIH budget be devoted to “preventive, alternative, and holistic approaches to health.”
Gostin said that as HHS secretary, Kennedy would have “a certain amount of flexibility” in allocating research funds, but at the NIH specifically, Congress funds certain centers and programs. Thus, “without Congressional action to correct these financial flows, he will be relatively limited in his ability to make the sweeping changes he wants to see,” he noted.
Plus, given the number of Republicans in Congress with a vested interest in research into childhood cancer, heart disease, diabetes and even infectious diseases, changing that would be “very, very difficult,” although “not impossible,” he added.
Could Kennedy revoke vaccine approval and reconsider vaccine advisory committees?
FDA approvals are issued at the center director level, which is not currently a political appointment, but the final decision is made by the HHS secretary, Gostin said.
Paul Offit, MD, a former member of the Advisory Committee on Immunization Practices (ACIP) at the CDC and a current member of the FDA's Vaccines and Related Biological Products Advisory Committee, noted that if the FDA's Vaccine Advisory Committee recommends licensing a vaccine and the FDA agrees, the HHS Secretary may not agree. “He might say, 'I think this vaccine hasn't been tested well enough,' or even that existing vaccines haven't been tested well enough.
Kennedy has made similar arguments before. In 2021, he lobbied the FDA revoke authorization for COVID vaccines, even as thousands of people died every week from the virus. In recent months, however, Kennedy appears to have softened his position. telling Republican senators he won't take away vaccines and that he simply wants to make safety and effectiveness data more accessible.
But Offit noted that Kennedy still believes vaccines cause autism, despite “abundant evidence” that they do not. “When he says… 'I'm just concerned about the safety of the vaccines,' what he really means is that he wants to see research that backs up his strong, strong, scientifically sound beliefs,” he said.
Donald Berwick, MD, president emeritus of the nonprofit Institute for Healthcare Improvement in Boston and a former CMS administrator under President Obama, noted that to change the vaccination policy reflected in the CDC rules, the HHS secretary would have to follow the rulemaking process and provide a 30- or 60-day comment period under the Administrative Procedure Act.
“You can always ignore the law, but when you are a public official … you took an oath, and there are consequences for violating that oath,” Berwick said, adding that those consequences must be enforced.
Jha noted that as health secretary, Kennedy would exercise “soft power” over the heads of other agencies, including CMS, FDA, NIH and CDC. “They won’t want to make decisions that will upset him,” he said.
Gostin argues that making vaccine bans the “holy grail” of the anti-vaccine agenda is misguided, given the many ways Kennedy, as HHS secretary, could potentially undermine confidence in immunization. While he has the power to rescind the approval, Kennedy may be hesitant to do so given the “enormous” backlash he could face, and would likely instead undermine vaccines in other ways – such as appointing vaccine skeptics to advisory committees such as ACIP, he said.
Balla noted that there are provisions in the law. Federal Advisory Committee Act (FACA) which regulate the formation and work of these committees. When there is a vacancy, the phone usually rings. Federal Register and an open application process follows. Bhalla also noted that a certain percentage of seats are reserved for certain stakeholders to ensure the committees are balanced.
According to Balla, in the “bad old days” before FACA, committees met in closed sessions and were made up of certain types of stakeholders. The balance and engagement requirements are intended to prevent this. “So it becomes more difficult to simply change the composition of the advisory committee by fiat,” he said.
However, Gostin noted, the CDC director makes nominations to advisory committees, and appointments are ultimately determined by the HHS secretary. And Kennedy, by using anti-vaccine allies on these committees, could ensure that even approved vaccines would not be covered by the Affordable Care Act.
“Even more insidiously,” he added, “he could select data [and] use misleading health information to fuel doubt and mistrust of certain vaccines,” and “a number of red states” will likely change their school immunization requirements as a result.
Additional checks and balances
Other forces may limit Kennedy's plans, but for Offit, Congress is unlikely to be one of them. “The very fact that they can confirm it tells you that you should be concerned that they will ever push back” on his actions, he said.
Kennedy's confirmation hearing in the Senate Finance Committee is scheduled for Wednesday, and he has a hearing in the Senate Health, Education, Labor and Pensions Committee on Thursday.
In Jha's opinion, the only obstacle to Kennedy's power was the sheer number of rules that government officials had to follow. “It is difficult to carry out reforms within the government… You can do window dressing, but meaningful reform is very, very difficult, and I don’t know that. [Kennedy has] he has the team, capacity or patience to do it,” he said. Moreover, if he is not careful, lawsuits will inevitably follow, he added.
“The truth is, I think the biggest bulwark against truly egregious behavior will likely be the courts,” Jha said. “I think for at least the next two years … if anyone is going to do anything, it's going to be the courts.”
