Here’s What RFK Jr. Can and Can’t Do if Confirmed as HHS Chief

Page Med today history.

President Trump said he would take health agencies in a new direction on the campaign trail and chose controversial candidates to help him achieve his goal, including Robert F. Kennedy Jr., Trump’s pick for HHS secretary.

However, it is unclear how much this might actually change if Kennedy were to be confirmed. To answer this question, Page Med today spoke with legal experts, former CMS and White House officials, and others who have worked alongside health agencies to assess the potential for substantive reforms within HHS and its subagencies.

Can Kennedy fire employees of the FDA and other agencies?

In October, Kennedy posted on X that “the FDA’s war on public health is about to end.” He criticized the agency’s “aggressive suppression” of a number of unproven therapies, 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. Preserve your records and 2. Pack your bags.”

If confirmed as HHS secretary, would Kennedy have the power to overhaul the FDA and eliminate “entire departments,” as he has said he plans to do? Lawrence Gostin, JD, a professor at Georgetown Law School in Washington, D.C., said Kennedy had “extensive authority” to reorganize the federal workforce, but it was not unlimited.

He could get help from Trump, who issued an executive order to reclassify some federal employee positions in a way that makes it easier to fire them at will, Gostin said. This order aims to reinstate a 2020 executive order, which Biden rescinded in January 2021.

Public officials have civil service and whistleblower protections, Gostin noted. “They can publicly complain about malicious intent” and would likely have a “valid legal challenge” if they took legal action, 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 were to “follow the letter of the law,” he would have to repeal the prior rule, which includes issuing a notice, holding a hearing and having “good reasons” for that revocation that could withstand legal challenges, Gostin said. “I think [Trump] may succeed, ultimately, if it perseveres,” but it could also abandon those efforts if enough public officials retire or resign on their own.

Steven Balla, PhD, associate professor of political science at George Washington University in Washington, DC, said: Page Med today“I am convinced that much of this is rhetoric designed to demoralize and diminish the federal workforce through ‘voluntary’ resignations.”

Gostin said the only “real check” on Trump’s authority is on centers or divisions with statutory functions, meaning their funding or authorities come directly from Congress. In these cases, Trump and Kennedy would need help from Congress to rescind or eliminate these positions. “But if it’s just a matter of reorganizing the way an agency is set up, [Kennedy] has fairly broad powers to do so, and that’s 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, agreed with Gostin. “It can certainly reorganize itself … but it will be difficult to close entire agencies,” he said.

Tom Scully, JD, who served as CMS administrator under President George W. Bush, noted that it wouldn’t hurt to trim at least one of the agencies a bit. “I crossed the [CMS org chart] and there are offices that I never heard of when I was there 20 years ago,” he said. Page Med today.

Scully, who considers himself a “pretty moderate Republican,” said that if he were in government now, he would probably eliminate 25 percent of the positions he sees on the organizational chart.

On the other hand, the Trump administration’s efforts to require all federal employees to report to their offices five days a week could have unintended consequences, as it could lead to many early retirements, he added.

“Some people will say, ‘Great.’ I would say, ‘It depends,'” said Scully, who is now director of Federal Health Policy Strategies, a Washington consulting firm. “If you lose the right people, you’ll be in trouble.”

Can Kennedy suspend infectious disease research and dedicate half of NIH funding to holistic health?

At an anti-vaccine conference in 2023, Kennedy, who was still 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. » Later, in a September 2024 editorial for the Wall Street Journalin which he endorsed Trump for president, Kennedy suggested that half of the NIH budget should be devoted to “preventative, alternative, and holistic approaches to health.”

Gostin said that as HHS secretary, Kennedy will have “some flexibility” in allocating research spending, but at the NIH in particular, Congress funds certain centers and programs. So, “without Congressional action to readjust these financial flows, he will have relatively limited ability to make the kind of radical changes he wants to see,” he noted.

Furthermore, given the number of Republicans in Congress with a vested interest in research into childhood cancers, heart disease, diabetes and even infectious diseases, it would be “very, very difficult,” although “not impossible,” to change that, he added.

Can Kennedy overturn vaccine approvals and revise vaccine advisory committees?

FDA approvals are granted at the center director level, which is not currently a political appointment, but the HHS secretary makes the final decision, Gostin said.

Paul Offit, MD, former member of the CDC’s Advisory Committee on Immunization Practices (ACIP) and current member of the FDA’s Vaccines and Related Biological Products Advisory Committee, noted that if the FDA’s Vaccine Advisory Committee recommends licensure of a vaccine and the FDA agrees, the HHS Secretary may disagree. “He can say, ‘I think this vaccine hasn’t been tested enough,'” or even that existing vaccines haven’t been tested enough.

Kennedy has made such arguments before. In 2021, he pressured the FDA to revoke the authorization of COVID vaccines, even as thousands of people died every week from the virus.. In recent months, however, Kennedy has appeared to moderate his stance, telling Republican senators that he would not kill vaccines and that he simply wanted to make safety and effectiveness data more easily available.

But Offit noted that Kennedy continues to believe vaccines cause autism despite “ample evidence” to the contrary. “When he says… ‘I only care about vaccine safety,’ what he really means is that he wants studies done to confirm his steadfast, fixed, science-resistant beliefs,” he said.

Donald Berwick, MD, president emeritus of the nonprofit Institute for Healthcare Improvement in Boston and former CMS administrator under President Obama, noted that to change vaccination policies reflected in CDC regulations, an HHS secretary would need 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’re a public official … you’re sworn to an oath, and violating that oath has consequences,” Berwick said, adding that those consequences must be enforced.

Jha noted that as HHS 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 might upset him,” he said.

Gostin argued that making banning vaccines the “holy grail” of an anti-vaccine agenda is misguided, given the many ways Kennedy, as HHS secretary, could potentially undermine confidence in vaccination. Although he has the power to rescind an approval, Kennedy might be reluctant to do so given the “tremendous” backlash he could face, and he would likely weaken vaccines in other ways, such as by appointing vaccine skeptics to advisory committees such as ACIP, he said.

Balla pointed out that there are stipulations in the Federal Advisory Committees Act (FACA) that govern how these committees are constituted and operate. When there is an opening, a call is usually made in the Federal Register and an open application process follows. Balla also noted that a share of seats is reserved for certain stakeholders to ensure balance in the committees.

In the “bad old days” before FACA, Balla said, committees held non-public meetings and were composed of certain types of stakeholders. Balance and solicitation requirements are intended to prevent this. “It is therefore more difficult to modify, simply by decree, the composition of the advisory committee,” he noted.

Yet, as Gostin pointed out, the CDC director appoints members of the advisory committees, and appointments are ultimately determined by the HHS secretary. And Kennedy, relying on his 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] using misleading health communications to sow doubt and distrust in certain vaccines,” and “a number of red states” would likely change their school vaccination requirements accordingly.

Additional checks and balances

Other forces could limit Kennedy’s plans, but Offit said Congress is unlikely to be one of them. “Just the fact that they can confirm it tells you that you should be concerned that they will never push back” on his actions, he said.

Kennedy’s confirmation hearing with the Senate Finance Committee is scheduled for Wednesday, and he will have a hearing Thursday with the Senate Health, Education, Labor and Pensions Committee.

For Jha, one of the obstacles to Kennedy’s power was the large number of rules that government officials had to follow. “It is difficult to make reforms within the government… We can make smoke and mirrors, but fundamental reform is very, very difficult, and I don’t know if [Kennedy has] I have the team, the ability or the patience to do it,” he said. Moreover, if he is not careful, legal action will inevitably follow, he added.

“The truth is I think the biggest defense against really egregious behavior will probably come from the courts,” Jha said. “I think at least for the next couple of years…if anyone does anything, it will be in court.”