ROGUE JUDGE STRIKES AGAIN

Murphy's Latest Power Grab Threatens Kennedy's Lawful Health Reforms

For the second time in less than a year, U.S. District Judge Brian E. Murphy of Boston has inserted himself between the elected executive branch and its constitutional authority to govern, issuing a sweeping injunction Monday that blocks Health and Human Services Secretary Robert F. Kennedy Jr. from implementing common-sense reforms to the nation’s childhood vaccine advisory structure. The ruling, which freezes both a revised immunization schedule and Kennedy’s reconstitution of the Advisory Committee on Immunization Practices, is the latest episode in a troubling pattern: a midnight Biden appointee wielding judicial power as a political weapon against a duly elected administration.

Judge Murphy’s record speaks for itself. In the spring of 2025, Murphy issued a preliminary injunction blocking the Trump administration from deporting violent criminal aliens to third countries. When the Supreme Court stayed that injunction by a vote of 6 to 3, Murphy simply declared that a separate remedial order he had issued was unaffected by the high court’s ruling and continued to block the deportations. The Supreme Court was forced to rebuke him a second time, by a remarkable 7 to 2 margin, warning that further defiance would not be tolerated. Justice Elena Kagan, a liberal, joined that majority rebuke. Even the court’s most left-leaning members could not defend what Murphy had done.

Now the same judge has turned his sights on public health policy, an area squarely within the executive’s discretionary authority. Kennedy, exercising his statutory powers as HHS Secretary, took two reasonable and defensible actions. First, he removed and replaced the members of ACIP, the advisory panel that shapes vaccine recommendations. Second, he oversaw a revision of the childhood immunization schedule, reducing the number of recommended vaccines from 17 to 11. Both actions were consistent with the administration’s mandate to scrutinize federal health policy with fresh eyes, and both reflect the kind of executive reorganization that every incoming administration undertakes as a matter of course.

Murphy found this process likely violated the Federal Advisory Committee Act and that bypassing ACIP when revising the schedule was arbitrary and capricious. But his legal reasoning deserves scrutiny. The Secretary of HHS has broad authority to manage the department’s advisory infrastructure. FACA imposes procedural requirements on advisory committees, but those requirements have never been interpreted to strip a cabinet secretary of the power to reconstitute a panel whose membership had grown stale and whose recommendations had calcified into something approaching uncritical orthodoxy. Murphy’s reading of the statute is, to put it charitably, aggressive, and his track record with aggressive readings of federal law has not been good. The Supreme Court has already corrected him once for misreading immigration statutes. There is every reason to expect the appellate courts will do so again here.

The political timing of this ruling is impossible to ignore. Murphy was confirmed by the narrowest of margins, 47 to 45, in the final days of the Democratic Senate’s lame-duck session in December 2024, rushed through by Senator Chuck Schumer before Republicans took control. Even Senator Susan Collins, the most moderate Republican in the chamber, voted against him. He has now issued consequential nationwide injunctions in two of the highest-profile policy battles of the second Trump administration: immigration enforcement and vaccine policy. Coincidence strains credulity.

The practical consequences of Monday’s ruling are serious. ACIP’s scheduled meeting this week to discuss COVID-19 vaccines has been canceled. The revised immunization schedule, which Kennedy’s team developed after a deliberate review process, is frozen. The administration is once again forced to litigate basic questions of executive authority before a single district court judge in Boston who has demonstrated, more than once, that he is willing to push past the limits of his authority to achieve policy outcomes he prefers.

HHS has signaled it will appeal promptly, and it should. Given the Supreme Court’s prior willingness to intervene swiftly in Murphy’s rulings, an emergency application for a stay is entirely appropriate. The justices have already shown they understand what is at stake when a lower court judge uses procedural pretexts to paralyze executive governance. The No Rogue Rulings Act, passed by the House, reflects a broader congressional consensus that the era of single district judges issuing sweeping nationwide injunctions to override federal policy must come to an end.

Kennedy’s reforms are not the work of a reckless ideologue. They represent a serious effort to apply rigorous scrutiny to vaccine recommendations that have gone largely unquestioned for decades, and to restore accountability to a committee whose membership had not been refreshed in years. Whether one agrees with the underlying policy or not, the process by which a duly confirmed cabinet secretary manages his department’s advisory infrastructure is not properly a matter for a Boston district court to veto. Judge Murphy should be reversed, and reversed quickly.

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