1 00:00:02,759 --> 00:00:07,520 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:09,080 --> 00:00:12,879 Speaker 2: Just think of law as these cases as a series 3 00:00:12,920 --> 00:00:16,560 Speaker 2: of kate of cars on a long train, and you 4 00:00:16,720 --> 00:00:20,599 Speaker 2: just accept the train, and you just add another car. 5 00:00:21,120 --> 00:00:23,479 Speaker 2: We just follow wherever it's going. We never go to 6 00:00:23,560 --> 00:00:26,920 Speaker 2: the front see who's driving the train. Where's it going? 7 00:00:28,320 --> 00:00:31,680 Speaker 2: And you could go up there in the engine room 8 00:00:31,680 --> 00:00:34,320 Speaker 2: and find us an orangutang drive in the train. Would 9 00:00:34,360 --> 00:00:37,000 Speaker 2: you want to follow that just because it's a train. 10 00:00:37,840 --> 00:00:42,080 Speaker 1: Justice Clarence Thomas used that train metaphor last week to 11 00:00:42,159 --> 00:00:46,640 Speaker 1: describe the import of settled law or precedent in deciding 12 00:00:46,720 --> 00:00:51,560 Speaker 1: new cases. Thomas downplayed the importance of prior Supreme Court 13 00:00:51,680 --> 00:00:55,320 Speaker 1: cases and said he wouldn't follow them if it doesn't 14 00:00:55,320 --> 00:00:56,560 Speaker 1: make sense to him. 15 00:00:56,880 --> 00:00:58,760 Speaker 2: And I don't think that any of these cases that 16 00:00:58,800 --> 00:01:02,080 Speaker 2: have been decided are the gospel. And I do give 17 00:01:02,120 --> 00:01:07,440 Speaker 2: respect to precedent, but it should to precedent should be 18 00:01:07,520 --> 00:01:11,800 Speaker 2: respectful of our legal tradition and our country and our laws, 19 00:01:12,160 --> 00:01:16,280 Speaker 2: and be based on something not just something that somebody 20 00:01:16,400 --> 00:01:18,240 Speaker 2: dreamt up and others went along with. 21 00:01:19,440 --> 00:01:22,760 Speaker 1: In the new term, beginning on Monday, the Supreme Court 22 00:01:22,840 --> 00:01:28,120 Speaker 1: will be considering several cases with long standing precedents, including 23 00:01:28,120 --> 00:01:31,880 Speaker 1: a ninety year old precedent that limits a president's ability 24 00:01:32,120 --> 00:01:36,720 Speaker 1: to remove members of some independent federal agencies without cause 25 00:01:37,240 --> 00:01:41,040 Speaker 1: and a landmark nineteen eighty six decision about the use 26 00:01:41,080 --> 00:01:45,080 Speaker 1: of race in redistricting under the Voting Rights Act. So 27 00:01:45,160 --> 00:01:50,120 Speaker 1: Thomas's comments dissing the importance of prior case law might 28 00:01:50,240 --> 00:01:54,680 Speaker 1: lead some to question whether those precedents will be overruled, 29 00:01:55,160 --> 00:01:59,200 Speaker 1: much as the Court has overrule precedents like the constitutional 30 00:01:59,280 --> 00:02:03,360 Speaker 1: right to a book and race and college admissions decisions. 31 00:02:03,880 --> 00:02:07,840 Speaker 1: My guest is Supreme Court expert David Super, a professor 32 00:02:07,880 --> 00:02:13,000 Speaker 1: at Georgetown Law. David, what was your reaction to Thomas's comments. 33 00:02:14,080 --> 00:02:19,880 Speaker 3: Justice Thomas's remarks were quite remarkable. He said that adherence 34 00:02:19,919 --> 00:02:24,000 Speaker 3: to precedent is perhaps overrated. He compared it to a 35 00:02:24,040 --> 00:02:29,280 Speaker 3: situation where people are riding a train without knowing who's 36 00:02:29,360 --> 00:02:33,760 Speaker 3: in the cabin driving the engine and suggested that that 37 00:02:33,960 --> 00:02:37,040 Speaker 3: might well be an orangutan, and we should not take 38 00:02:37,080 --> 00:02:41,360 Speaker 3: directions from an orangutan. I've never compared the US Supreme 39 00:02:41,360 --> 00:02:44,760 Speaker 3: Court to an orangutan, but he has apparently, And he 40 00:02:44,919 --> 00:02:49,600 Speaker 3: said that precedent may be something that one person just 41 00:02:49,760 --> 00:02:52,800 Speaker 3: bought up and everyone else said, yeah, let's go along. 42 00:02:53,000 --> 00:02:55,919 Speaker 3: And on that basis, he thinks that the court needs 43 00:02:56,000 --> 00:03:00,760 Speaker 3: to be more willing to overrule precedent unless deferential. President. 44 00:03:01,440 --> 00:03:04,800 Speaker 1: When the Supreme Court justices have their confirmation hearings, they 45 00:03:04,800 --> 00:03:09,160 Speaker 1: all say, oh, you know, we're going to follow precedent. Yes, yes, yes, 46 00:03:09,240 --> 00:03:13,079 Speaker 1: And of course they don't in many cases. So tell 47 00:03:13,160 --> 00:03:16,560 Speaker 1: us about the importance of precedents in the law. 48 00:03:16,960 --> 00:03:22,639 Speaker 3: Well, precedent is what makes the courts distinctive. Anybody can 49 00:03:22,680 --> 00:03:27,160 Speaker 3: decide however they want at the moment. Why we listen 50 00:03:27,240 --> 00:03:30,519 Speaker 3: to the courts is because they are bound by the law, 51 00:03:31,120 --> 00:03:35,040 Speaker 3: and in the Anglo American system, the law is precedent. 52 00:03:35,120 --> 00:03:38,240 Speaker 3: We even have a fancy term for it, starry decisives, 53 00:03:38,560 --> 00:03:43,640 Speaker 3: and it is supposed to be what keeps unelected judges 54 00:03:44,040 --> 00:03:48,040 Speaker 3: from acting willfully and just pursuing their personal agendas. 55 00:03:48,160 --> 00:03:50,640 Speaker 1: He also said, it's not the gospel, which I always 56 00:03:50,640 --> 00:03:53,520 Speaker 1: thought precedent was the gospel. But as you mentioned, he 57 00:03:53,880 --> 00:03:58,520 Speaker 1: in a backhanded way, made fun of prior Supreme Court justices. 58 00:03:58,600 --> 00:04:02,160 Speaker 1: He said, the President and if it's totally stupid, and 59 00:04:02,160 --> 00:04:04,600 Speaker 1: that's what they've decided. You don't go along with it 60 00:04:04,760 --> 00:04:07,680 Speaker 1: just because it's decided. Does it show just a lack 61 00:04:07,720 --> 00:04:10,960 Speaker 1: of respect for prior justices. 62 00:04:11,080 --> 00:04:14,560 Speaker 3: Well, it certainly does. It suggests that the current court 63 00:04:14,680 --> 00:04:18,760 Speaker 3: is smart and its predecessors are foolish, which is a 64 00:04:18,800 --> 00:04:25,080 Speaker 3: remarkably condescending approach. It's also an ahistorical approach. We've had 65 00:04:25,160 --> 00:04:30,000 Speaker 3: many brilliant justices on the court. We've had many court 66 00:04:30,279 --> 00:04:35,400 Speaker 3: that historians regard as all star courts, packed with brilliant 67 00:04:35,480 --> 00:04:39,120 Speaker 3: legal minds, and to suggest that they can be compared 68 00:04:39,120 --> 00:04:41,040 Speaker 3: to orangutans, it's disappointing. 69 00:04:41,960 --> 00:04:47,440 Speaker 1: Thomas is a believer in originalism looking at history, but 70 00:04:47,560 --> 00:04:51,120 Speaker 1: yet when the justices look at history, they often come 71 00:04:51,200 --> 00:04:56,560 Speaker 1: up with totally different conclusions about the historical origins of 72 00:04:56,640 --> 00:04:59,760 Speaker 1: the law. Why does he think that that's so much 73 00:04:59,760 --> 00:05:03,160 Speaker 1: better better than following precedent, I don't know. 74 00:05:03,560 --> 00:05:09,479 Speaker 3: And I find it exceedingly strange that perhaps the court's 75 00:05:09,560 --> 00:05:14,000 Speaker 3: most vociferous originalist is taking this view, Because if there 76 00:05:14,080 --> 00:05:18,880 Speaker 3: is one core principle of the original understanding of the 77 00:05:18,920 --> 00:05:22,000 Speaker 3: courts is that they were bound by precedent. That's the 78 00:05:22,320 --> 00:05:26,560 Speaker 3: essence of the common law system that England had for 79 00:05:26,720 --> 00:05:31,760 Speaker 3: many centuries before the founding of this country, and that originalists, 80 00:05:31,880 --> 00:05:36,400 Speaker 3: like Justice Thomas say, should control how we decide things now. 81 00:05:37,040 --> 00:05:41,920 Speaker 3: There are important decisions that were handed down five six 82 00:05:42,040 --> 00:05:46,200 Speaker 3: hundred years ago that decided difficult questions and that no 83 00:05:46,360 --> 00:05:51,200 Speaker 3: court since then has ever disputed. Just as Thomas seems 84 00:05:51,240 --> 00:05:55,640 Speaker 3: to suggest that that core original aspect of Anglo American 85 00:05:55,800 --> 00:05:59,279 Speaker 3: jurisprudence is irrelevant, this is not. 86 00:05:59,200 --> 00:06:04,039 Speaker 1: Really anything new for Justice Thomas. The late Justice Antonin 87 00:06:04,160 --> 00:06:09,040 Speaker 1: Scalia told one of Thomas's biographers quote, he doesn't believe 88 00:06:09,080 --> 00:06:14,200 Speaker 1: in starry decisive period and Thomas has also frequently suggested 89 00:06:14,320 --> 00:06:19,080 Speaker 1: overturning landmark opinions in cases that are not before the court. 90 00:06:20,080 --> 00:06:23,479 Speaker 3: Well, and it's important that Justice Cleia was Justice Thomas's 91 00:06:23,480 --> 00:06:28,359 Speaker 3: best friend on the court and most frequent ally, but 92 00:06:29,360 --> 00:06:35,800 Speaker 3: unlike Justice Thomas, Justice Cleia generally decided the cases that 93 00:06:35,839 --> 00:06:39,640 Speaker 3: were brought for him, whereas Justice Thomas for a long 94 00:06:39,720 --> 00:06:46,039 Speaker 3: time has written concurring or descending opinions inviting parties to 95 00:06:46,200 --> 00:06:50,760 Speaker 3: bring cases to the court. That departs from another important 96 00:06:50,800 --> 00:06:55,840 Speaker 3: aspect of originalism, which is that the courts are passive. 97 00:06:55,960 --> 00:06:58,520 Speaker 3: They take the cases that come to them, but they 98 00:06:58,560 --> 00:07:02,560 Speaker 3: don't go out trying to do affirmative policy making. Again, 99 00:07:02,640 --> 00:07:06,600 Speaker 3: that goes back hundreds and hundreds of years, and an 100 00:07:06,680 --> 00:07:11,480 Speaker 3: originalist like Justice Thomas should be particularly anxious to follow 101 00:07:11,960 --> 00:07:16,160 Speaker 3: the traditional role of the courts as passive deciders rather 102 00:07:16,280 --> 00:07:18,920 Speaker 3: than as policy makers with an agenda. 103 00:07:19,280 --> 00:07:22,920 Speaker 1: The Roberts Court has overturned I read twenty one precedents, 104 00:07:23,040 --> 00:07:26,920 Speaker 1: but it includes significant precedents, of course, the constitutional right 105 00:07:27,000 --> 00:07:31,040 Speaker 1: to abortion in Roe v. Wade, race conscious admissions and 106 00:07:31,120 --> 00:07:35,840 Speaker 1: higher education and the Harvard case, the power of executive agencies, 107 00:07:35,880 --> 00:07:39,640 Speaker 1: and the Chevron doctrine, a forty year old precedent on 108 00:07:39,960 --> 00:07:44,160 Speaker 1: unions in the Janice case. And seventeen of those cases 109 00:07:44,200 --> 00:07:48,720 Speaker 1: that they overturned were split five to four decisions, with 110 00:07:48,800 --> 00:07:52,680 Speaker 1: the conservative justices on one side and the liberal justices 111 00:07:52,920 --> 00:07:56,120 Speaker 1: on the other. I mean, does that tell you anything 112 00:07:56,400 --> 00:07:59,760 Speaker 1: about what was going on there? Well? 113 00:08:00,120 --> 00:08:04,000 Speaker 3: Does suggest that this is a court with an agenda, 114 00:08:04,240 --> 00:08:08,800 Speaker 3: That they are not calling balls and strikes, as justices 115 00:08:09,320 --> 00:08:13,880 Speaker 3: like to say when they're seeking confirmation, but rather that 116 00:08:13,960 --> 00:08:19,040 Speaker 3: they're pursuing a particular agenda, that they are more conservative 117 00:08:19,320 --> 00:08:21,800 Speaker 3: than their four bears, and they're trying to move the 118 00:08:21,880 --> 00:08:24,800 Speaker 3: law in that direction. I should note that one of 119 00:08:24,800 --> 00:08:29,960 Speaker 3: those five four decisions you mentioned actually had five justices 120 00:08:30,240 --> 00:08:34,320 Speaker 3: voting to overturn president, and the Chief Justice, a very 121 00:08:34,360 --> 00:08:38,600 Speaker 3: conservative justice in his own right, joining with the pree 122 00:08:38,679 --> 00:08:42,320 Speaker 3: moderate to liberal justices in disagreeing that being bobbed. 123 00:08:43,120 --> 00:08:47,400 Speaker 1: Roberts recently has talked about how you know, the Roberts Court, 124 00:08:47,480 --> 00:08:51,679 Speaker 1: His court overturned precedence at the lowest rate of any 125 00:08:51,720 --> 00:08:54,240 Speaker 1: of the recent courts, and the New York Times study 126 00:08:54,440 --> 00:08:57,760 Speaker 1: said that it was one point six per term averaged out. 127 00:08:58,360 --> 00:09:02,280 Speaker 1: But does that ignore the significance or the importance of 128 00:09:02,360 --> 00:09:04,760 Speaker 1: the precedents that they're overturning. 129 00:09:05,600 --> 00:09:10,520 Speaker 3: Well, it does, and it also is subject to a 130 00:09:10,559 --> 00:09:14,800 Speaker 3: lot of counting. There have been many, many, many cases 131 00:09:14,840 --> 00:09:18,840 Speaker 3: about abortion rights after Roe v. Wade. Do you say 132 00:09:18,840 --> 00:09:22,080 Speaker 3: that Bob's only overturned Row. No, it made a whole 133 00:09:22,120 --> 00:09:25,880 Speaker 3: bunch of other cases irrelevant and wrong as well when 134 00:09:25,920 --> 00:09:30,000 Speaker 3: they said this or that restriction on abortion was unconstitutional. 135 00:09:30,120 --> 00:09:34,280 Speaker 3: So you have to make some very arbitrary choices in 136 00:09:34,360 --> 00:09:37,600 Speaker 3: doing account like that. There are going to be some 137 00:09:38,400 --> 00:09:43,360 Speaker 3: very very technical cases in admulti law that may get 138 00:09:43,400 --> 00:09:46,880 Speaker 3: overturned because of new technology, and no one really knows 139 00:09:47,000 --> 00:09:50,920 Speaker 3: or cares, and then they're going to be sweeping decisions 140 00:09:51,040 --> 00:09:55,040 Speaker 3: about the Fourteenth Amendment about the separation of powers, and 141 00:09:55,280 --> 00:09:58,679 Speaker 3: that kind of counting game blurs all of them together. 142 00:10:00,280 --> 00:10:03,840 Speaker 1: We look at the upcoming term that starts on Monday, 143 00:10:04,480 --> 00:10:07,520 Speaker 1: there seem to be a few precedents that may get overturned, 144 00:10:07,520 --> 00:10:12,559 Speaker 1: and one involves that nearly century old ruling called Humphrey's 145 00:10:12,600 --> 00:10:18,319 Speaker 1: Executor that protects the heads of independent agencies. Justice Elena Kagan, 146 00:10:18,800 --> 00:10:23,240 Speaker 1: in a dissent when the majority allowed Trump to fire 147 00:10:23,679 --> 00:10:27,400 Speaker 1: for now, the last Democratic member of the FTC, said 148 00:10:27,440 --> 00:10:32,199 Speaker 1: that her colleagues are quote raring to overturn Humphrey's Executor. 149 00:10:32,840 --> 00:10:35,280 Speaker 1: Do you think that'll be the next precedent to go? 150 00:10:35,920 --> 00:10:39,880 Speaker 3: It will be unless they overturned something else first. Humphrey's 151 00:10:39,920 --> 00:10:43,160 Speaker 3: Executor is clearly on its way out. There's a real 152 00:10:43,200 --> 00:10:49,000 Speaker 3: irony here because Justices Gorsuch and Capitol have criticized lower 153 00:10:49,080 --> 00:10:52,880 Speaker 3: courts for not showing in our prospect or Supreme Court president, 154 00:10:53,360 --> 00:10:57,600 Speaker 3: even when that president is handed down through the shadow docket, 155 00:10:57,960 --> 00:11:01,840 Speaker 3: without full briefing, without oral argument, without much of an opinion. 156 00:11:02,360 --> 00:11:07,360 Speaker 3: And here Justice Thomas, their partner, is turning around and 157 00:11:07,559 --> 00:11:12,000 Speaker 3: saying that he would disrespect Supreme Court decisions even that 158 00:11:12,160 --> 00:11:17,319 Speaker 3: were fully argued, fully briefed, and the result of painstaking opinions. 159 00:11:17,480 --> 00:11:20,360 Speaker 3: I think the Justices need to decide whether the work 160 00:11:20,400 --> 00:11:23,000 Speaker 3: of the Supreme Court is or is not entitled to 161 00:11:23,120 --> 00:11:23,920 Speaker 3: great deference. 162 00:11:24,520 --> 00:11:29,240 Speaker 1: The Trump administration is asking the justices to take his 163 00:11:29,480 --> 00:11:34,400 Speaker 1: challenge to birthright citizenship, and they did use the birthright 164 00:11:34,440 --> 00:11:38,760 Speaker 1: citizenship clash to make it harder for federal judges to 165 00:11:38,880 --> 00:11:44,000 Speaker 1: block government policies nationwide. If they take this case, does 166 00:11:44,040 --> 00:11:47,360 Speaker 1: that say, yes, we're going to overturn the precedent from 167 00:11:47,640 --> 00:11:51,599 Speaker 1: eighteen ninety eight that supported birthright. 168 00:11:51,160 --> 00:11:55,480 Speaker 3: Citizenship and as the president handed down by arguably the 169 00:11:55,520 --> 00:11:59,640 Speaker 3: most conservative Supreme Court in the nation's history, So it 170 00:11:59,640 --> 00:12:04,360 Speaker 3: would be quite remarkable to overturn that case. I think 171 00:12:04,440 --> 00:12:08,439 Speaker 3: the Justices will take this simply because it's a high 172 00:12:08,440 --> 00:12:13,960 Speaker 3: profile and very important matter that the President has been emphasizing. 173 00:12:14,240 --> 00:12:17,200 Speaker 3: I would have trouble imagining how they could overturn it. 174 00:12:17,760 --> 00:12:23,600 Speaker 3: The original opinion is based on analysis of historical uses 175 00:12:23,640 --> 00:12:26,319 Speaker 3: of terms going back hundreds of years. It's a very 176 00:12:26,400 --> 00:12:32,679 Speaker 3: model of originalism, and the Trump administration's complaint is largely 177 00:12:32,720 --> 00:12:36,559 Speaker 3: a political one responding to their base and their opposition 178 00:12:36,640 --> 00:12:42,959 Speaker 3: to immigrants. Any serious originalist approach would affirm the plain 179 00:12:43,120 --> 00:12:46,959 Speaker 3: language of the fourteenth Amendment and the decision from the 180 00:12:47,040 --> 00:12:47,959 Speaker 3: nineteenth century. 181 00:12:48,559 --> 00:12:52,000 Speaker 1: In a concurring opinion in the Dodds case, which overturned 182 00:12:52,160 --> 00:12:57,520 Speaker 1: Row Thomas suggested revisiting cases concerning the rights to conception, 183 00:12:57,840 --> 00:13:01,840 Speaker 1: same sex intimacy, and marriage quality. And the Court is 184 00:13:01,880 --> 00:13:07,720 Speaker 1: being asked to overturn the Obergefell decision, the landmark twenty 185 00:13:08,120 --> 00:13:13,040 Speaker 1: fifteen decision that legalized same sex marriage nationwide in a 186 00:13:13,120 --> 00:13:18,200 Speaker 1: case involving Kim Davis, the former Kentucky cleric who became 187 00:13:18,320 --> 00:13:21,960 Speaker 1: famous when she was jailed for refusing to issue marriage 188 00:13:22,000 --> 00:13:25,960 Speaker 1: licenses to a gay couple on religious grounds. Do you 189 00:13:25,960 --> 00:13:28,880 Speaker 1: think that same sex marriage is in jeopardy. 190 00:13:29,760 --> 00:13:32,719 Speaker 3: It certainly is in jeopardy. It's hard to know what 191 00:13:32,760 --> 00:13:35,640 Speaker 3: the Court will do. The Chief Justice Roberts has been 192 00:13:35,679 --> 00:13:40,480 Speaker 3: insisting that the judges look at cases on their merits 193 00:13:40,480 --> 00:13:44,079 Speaker 3: and are not pursuing a political agenda. If the Court 194 00:13:44,200 --> 00:13:50,679 Speaker 3: turns over a decision handed down barely a decade ago 195 00:13:51,160 --> 00:13:56,000 Speaker 3: that has had this profounded impact on the nation's fabric, 196 00:13:56,600 --> 00:14:00,280 Speaker 3: I think his effort to persuade people that this court 197 00:14:00,360 --> 00:14:03,040 Speaker 3: is anything other than the super legislature will fail. 198 00:14:03,320 --> 00:14:05,840 Speaker 1: I mean, do you think Thomas with these statements as 199 00:14:05,880 --> 00:14:09,280 Speaker 1: an outlier that the other justices are sort of cringing 200 00:14:09,480 --> 00:14:10,600 Speaker 1: when they hear them. 201 00:14:11,040 --> 00:14:14,480 Speaker 3: I imagine the Chief Justice was cringing all the way 202 00:14:14,559 --> 00:14:19,640 Speaker 3: through reading accounts of this, because Justice Thomas is so 203 00:14:19,800 --> 00:14:24,640 Speaker 3: overtly politicizing the court. But Justice Thomas is winning a 204 00:14:24,680 --> 00:14:28,760 Speaker 3: lot more cases than he's losing these days, So it 205 00:14:28,800 --> 00:14:32,000 Speaker 3: would seem that a number of other justices are pretty 206 00:14:32,000 --> 00:14:33,520 Speaker 3: comfortable with this approach. 207 00:14:34,320 --> 00:14:37,680 Speaker 1: So you think it's just the Chief that's uncomfortable with 208 00:14:37,760 --> 00:14:41,720 Speaker 1: these sort of brazen statements from Thomas. 209 00:14:42,600 --> 00:14:45,280 Speaker 3: I think a lot of the others, first and foremost 210 00:14:45,280 --> 00:14:48,800 Speaker 3: the Chief, but certainly also Justice Barrett, would rather we 211 00:14:48,960 --> 00:14:54,600 Speaker 3: not be this explicit about the Court pursuing its own agenda. 212 00:14:54,760 --> 00:14:57,560 Speaker 3: But Justice Thomas, I guess it's feels like he's reached 213 00:14:57,600 --> 00:14:59,840 Speaker 3: the point where he sees no reason to be secret 214 00:14:59,840 --> 00:15:02,520 Speaker 3: to about it. He's got a super majority, he can 215 00:15:02,560 --> 00:15:06,080 Speaker 3: lose a very conservative justice and still win a case, 216 00:15:06,320 --> 00:15:10,120 Speaker 3: and so he's prepared to dispense with pretemps. 217 00:15:10,720 --> 00:15:13,560 Speaker 1: And why do you say Justice Barrett in particular. 218 00:15:14,200 --> 00:15:18,520 Speaker 3: Well, she's given a couple of interviews lately in which 219 00:15:18,680 --> 00:15:22,360 Speaker 3: she said that we're not at a constitutional crisis and 220 00:15:22,440 --> 00:15:26,440 Speaker 3: things are working more or less ordinarily, and they sort 221 00:15:26,440 --> 00:15:31,640 Speaker 3: of downplaying the importance of what's happening and seems to 222 00:15:31,680 --> 00:15:35,880 Speaker 3: suggest that what we're doing is simply a technical act 223 00:15:35,920 --> 00:15:38,880 Speaker 3: of judging, and Justice Thomas is saying, no, I'm not 224 00:15:38,960 --> 00:15:41,720 Speaker 3: doing technical judging. I'm getting rid of the stupid stuff. 225 00:15:42,120 --> 00:15:45,880 Speaker 1: Well, we're off to a new start on Monday. We'll 226 00:15:45,920 --> 00:15:49,680 Speaker 1: see whether this new term brings any more reversals of precedent. 227 00:15:50,160 --> 00:15:54,360 Speaker 1: Thanks so much, David. That's Professor David Super of Georgetown Law. 228 00:15:54,960 --> 00:15:59,200 Speaker 1: Last week, President Trump warned about the unproven link between 229 00:15:59,280 --> 00:16:04,360 Speaker 1: women's use of thailanol during pregnancy and autism in children 230 00:16:04,720 --> 00:16:06,800 Speaker 1: and advise women to tough it out. 231 00:16:07,480 --> 00:16:11,320 Speaker 4: For this reason, they are strongly recommending that women limit 232 00:16:11,440 --> 00:16:18,000 Speaker 4: iler and all use during pregnancy unless medically necessary, that's, 233 00:16:18,040 --> 00:16:20,880 Speaker 4: for instance, in cases of extremely high fever. 234 00:16:22,080 --> 00:16:28,120 Speaker 1: Medical experts and organizations immediately slam the remarks as irresponsible 235 00:16:28,200 --> 00:16:32,480 Speaker 1: and dangerous advice not backed by science, and thailan al's 236 00:16:32,520 --> 00:16:37,160 Speaker 1: manufacturers said there is no proven link between taking acidaminifin 237 00:16:37,480 --> 00:16:42,280 Speaker 1: and autism. Still, the FDA has initiated the process for 238 00:16:42,360 --> 00:16:47,080 Speaker 1: a labeled change to products containing a set ofminifin. Joining 239 00:16:47,080 --> 00:16:50,520 Speaker 1: me is healthcare attorney Harry Nelson, a partner at leech 240 00:16:50,600 --> 00:16:54,840 Speaker 1: Tishman Nelson Hardiman. So let's start with the elephant in 241 00:16:54,880 --> 00:16:58,120 Speaker 1: the room, so to speak, President Trump and of course 242 00:16:58,400 --> 00:17:02,000 Speaker 1: RFK Junior's claim that there is a link between the 243 00:17:02,120 --> 00:17:06,480 Speaker 1: use of thailanol during pregnancy and autism in children. 244 00:17:07,000 --> 00:17:12,840 Speaker 5: So President Trump and the FDA were citing two US studies. 245 00:17:13,359 --> 00:17:18,560 Speaker 5: In both studies there was some heightened rate of autism 246 00:17:19,040 --> 00:17:26,240 Speaker 5: in the population of moms who took seamnifin thailanl during pregnancy. 247 00:17:26,040 --> 00:17:28,359 Speaker 5: So the FAA was rolling on these two studies. What 248 00:17:28,640 --> 00:17:31,000 Speaker 5: many people are pointing out is that there was a 249 00:17:31,119 --> 00:17:35,680 Speaker 5: very large Swedish study of the same issue with two 250 00:17:35,760 --> 00:17:40,600 Speaker 5: point five million people participating, substantially a bigger cohort, which 251 00:17:40,600 --> 00:17:44,320 Speaker 5: found absolutely no link. So first, there's really competing data 252 00:17:44,520 --> 00:17:47,960 Speaker 5: on the point, and second, there's nothing here to suggest 253 00:17:48,160 --> 00:17:52,800 Speaker 5: causation that thailandal causes autism if taken by a mother 254 00:17:52,840 --> 00:17:57,720 Speaker 5: and pregnancy, rather some correlation which needs to be studied further. 255 00:17:57,800 --> 00:18:02,320 Speaker 5: So it's an interesting case again of a major divide 256 00:18:02,320 --> 00:18:04,240 Speaker 5: about what good science looks like. 257 00:18:04,840 --> 00:18:08,640 Speaker 1: Well, also in the FDA news release itself, it said, 258 00:18:09,000 --> 00:18:11,840 Speaker 1: it's important to note that while in association between a 259 00:18:11,920 --> 00:18:15,159 Speaker 1: set of MINIFIT and neurological conditions has been described in 260 00:18:15,240 --> 00:18:19,879 Speaker 1: many studies, a causal relationship has not been established, and 261 00:18:19,920 --> 00:18:25,080 Speaker 1: there are contrary studies in the scientific literature. So why 262 00:18:25,080 --> 00:18:27,480 Speaker 1: are they doing this if they're saying in their own 263 00:18:27,560 --> 00:18:30,360 Speaker 1: statement that it hasn't been established. 264 00:18:31,040 --> 00:18:36,520 Speaker 5: My sense is that this president and this administration is 265 00:18:36,560 --> 00:18:41,160 Speaker 5: really trying to make sure that it maintains an activist 266 00:18:41,760 --> 00:18:45,480 Speaker 5: kind of footing with people who are looking for change 267 00:18:45,520 --> 00:18:49,800 Speaker 5: in its base of supporters, and that this was a 268 00:18:49,920 --> 00:18:54,480 Speaker 5: very aggressive style of announcement that was made before there 269 00:18:54,560 --> 00:18:57,760 Speaker 5: was any kind of conclusive process here, but that this 270 00:18:58,040 --> 00:19:01,679 Speaker 5: was done really as a kind of political driver, with 271 00:19:01,800 --> 00:19:05,160 Speaker 5: the president wanting an opportunity to stand at the podium 272 00:19:05,200 --> 00:19:07,840 Speaker 5: and make the claim that he's doing something to protect 273 00:19:07,920 --> 00:19:12,320 Speaker 5: public health and fighting back against the scientific establishment, you know, 274 00:19:12,400 --> 00:19:14,880 Speaker 5: and yet another way. So that's at least my sense 275 00:19:14,920 --> 00:19:16,560 Speaker 5: of why this happened the way it did. 276 00:19:17,280 --> 00:19:21,639 Speaker 1: When does the law allow the FDA to change a 277 00:19:21,720 --> 00:19:22,479 Speaker 1: drug label. 278 00:19:22,760 --> 00:19:26,080 Speaker 5: So the FDA can at any point initiate an administrative 279 00:19:26,080 --> 00:19:29,000 Speaker 5: process of looking at how a drug both a prescription 280 00:19:29,119 --> 00:19:31,800 Speaker 5: druger and over the counter drug and tailanol interestingly is 281 00:19:31,840 --> 00:19:35,159 Speaker 5: both has both forms. You know, there's a whole administrative 282 00:19:35,200 --> 00:19:38,840 Speaker 5: process by which a change can be proposed, the public 283 00:19:38,840 --> 00:19:40,560 Speaker 5: has a chance to comment on it, and then it's 284 00:19:40,600 --> 00:19:44,000 Speaker 5: finally ordered. And then only after that process do prescription 285 00:19:44,119 --> 00:19:47,360 Speaker 5: drug manufacturers like the company can view here that makes 286 00:19:47,440 --> 00:19:49,960 Speaker 5: tilanol have the right to challenge it. So there's a 287 00:19:50,000 --> 00:19:53,919 Speaker 5: long process that's still ahead, and it's not unusual for 288 00:19:53,960 --> 00:19:56,960 Speaker 5: the FDA to undertake that process. It's just that here 289 00:19:57,240 --> 00:20:00,600 Speaker 5: the sequence of events of really that evidence, review, the decision, 290 00:20:00,800 --> 00:20:03,560 Speaker 5: and a process that happening came second. Normally that process 291 00:20:03,600 --> 00:20:06,840 Speaker 5: comes first. Here the political announcement came ahead of everything. 292 00:20:07,240 --> 00:20:10,919 Speaker 1: Is it normal to do this without negotiating with the 293 00:20:10,960 --> 00:20:11,920 Speaker 1: company first. 294 00:20:12,600 --> 00:20:15,600 Speaker 5: I do think that it is more typical to allow 295 00:20:15,760 --> 00:20:19,760 Speaker 5: prescription drug manufacturers to be part of a process and 296 00:20:20,040 --> 00:20:22,240 Speaker 5: make sure that all of the evidence, all of the 297 00:20:22,280 --> 00:20:25,720 Speaker 5: research is considered. So I don't know exactly how much 298 00:20:25,880 --> 00:20:29,440 Speaker 5: can view, how much opportunity had. It seems clear from 299 00:20:29,440 --> 00:20:31,920 Speaker 5: everything that the company is saying that it intends fully 300 00:20:31,960 --> 00:20:34,480 Speaker 5: to challenge this action and to argue that the FDA 301 00:20:34,520 --> 00:20:38,520 Speaker 5: is acting without sufficient scientific justification and that process. Certainly, 302 00:20:38,560 --> 00:20:42,679 Speaker 5: if there was an unquestionable issue here, the FDA normally 303 00:20:42,720 --> 00:20:45,280 Speaker 5: could have started in dialogue with the company to make 304 00:20:45,320 --> 00:20:47,880 Speaker 5: sure that this action was sound. You know, the thing 305 00:20:47,920 --> 00:20:49,879 Speaker 5: that worries me the most here is that TAILERML is 306 00:20:49,880 --> 00:20:53,040 Speaker 5: one of the most widely used and trusted medications out 307 00:20:53,040 --> 00:20:56,040 Speaker 5: there during pregnancy as well as for many other conditions, 308 00:20:56,400 --> 00:21:00,360 Speaker 5: and this creates a risk of confusion of fear, and 309 00:21:00,680 --> 00:21:03,520 Speaker 5: you know that's a process is not great for public health. 310 00:21:04,280 --> 00:21:08,040 Speaker 1: Yeah, I mean, there are so many stories about doctors 311 00:21:08,280 --> 00:21:13,720 Speaker 1: obgyns receiving tons of calls from pregnant women who don't 312 00:21:13,720 --> 00:21:16,880 Speaker 1: know what to do. They're very confused about this new 313 00:21:17,280 --> 00:21:19,480 Speaker 1: allegation I guess from the FDA. 314 00:21:19,640 --> 00:21:21,480 Speaker 5: Yeah. And it's by the way, globally, we're seeing with 315 00:21:21,520 --> 00:21:26,680 Speaker 5: World Health Organization and European drug regulatory systems that around 316 00:21:26,720 --> 00:21:28,480 Speaker 5: the rest of the world, the message is going out 317 00:21:28,480 --> 00:21:31,359 Speaker 5: that that has seen a minifit is perfectly safe for 318 00:21:31,440 --> 00:21:34,600 Speaker 5: pregnant mothers. And so this is like a creating a 319 00:21:34,640 --> 00:21:39,440 Speaker 5: real contrast between the public health word in the rest 320 00:21:39,480 --> 00:21:41,280 Speaker 5: of the world and apparently in the United States that 321 00:21:41,400 --> 00:21:42,600 Speaker 5: this goes all the way through. 322 00:21:43,000 --> 00:21:46,000 Speaker 1: And do we know how the FDA intends to change 323 00:21:46,040 --> 00:21:48,720 Speaker 1: the label. Is it going to be like a tobacco 324 00:21:48,800 --> 00:21:50,320 Speaker 1: warning on cigarette packs. 325 00:21:50,720 --> 00:21:53,320 Speaker 5: Well, it's a big question. Again, it's a question whether 326 00:21:53,359 --> 00:21:55,320 Speaker 5: this is only going to apply to the prescription drug 327 00:21:55,359 --> 00:21:58,040 Speaker 5: form or also to the over the counter form. There's 328 00:21:58,080 --> 00:22:01,760 Speaker 5: a lot of generic cinematics and out there on sales, 329 00:22:01,800 --> 00:22:03,320 Speaker 5: and it's not clear exactly who this is going to 330 00:22:03,359 --> 00:22:05,119 Speaker 5: apply to or what the labels going to look like. 331 00:22:05,200 --> 00:22:06,919 Speaker 5: That's something that will have to be resolved by the 332 00:22:06,960 --> 00:22:10,280 Speaker 5: FDA as we go through the administrative process ahead. 333 00:22:10,840 --> 00:22:14,879 Speaker 1: So the drugmaker can only challenge in the administrative process 334 00:22:15,680 --> 00:22:17,800 Speaker 1: after the review is complete. 335 00:22:18,040 --> 00:22:21,120 Speaker 5: Yeah, exactly. There needs to be a final order. So 336 00:22:21,119 --> 00:22:24,960 Speaker 5: so first the agency has to make the final proposed action, 337 00:22:25,080 --> 00:22:26,919 Speaker 5: as it's called, and then there has to be an 338 00:22:26,920 --> 00:22:30,160 Speaker 5: opportunity for the public to comment, and only when the 339 00:22:30,240 --> 00:22:33,239 Speaker 5: action is actually finalized and is an agency decision by 340 00:22:33,280 --> 00:22:35,800 Speaker 5: the FDA. At that point, you know the issue is 341 00:22:36,200 --> 00:22:38,320 Speaker 5: ripe to be challenged by the drug manufacturer. 342 00:22:38,720 --> 00:22:42,920 Speaker 1: Harry, does anyone in the healthcare community doubt that no 343 00:22:42,960 --> 00:22:48,320 Speaker 1: matter what the public comments are and what the manufacturer says, 344 00:22:48,680 --> 00:22:51,280 Speaker 1: that the FDA is going to go ahead to try 345 00:22:51,280 --> 00:22:54,200 Speaker 1: to relabel a cineminefin. 346 00:22:54,000 --> 00:22:56,680 Speaker 5: I think it's fairly safe to say this administration has 347 00:22:56,720 --> 00:23:00,000 Speaker 5: a strong grip on the FDA. No one is expecting 348 00:22:59,720 --> 00:23:02,919 Speaker 5: a kind of independence or for the FDA leadership to 349 00:23:03,000 --> 00:23:06,480 Speaker 5: buck the announcements, particularly after it's made by the President. 350 00:23:06,640 --> 00:23:08,360 Speaker 5: So you know, and by the way, I should say 351 00:23:08,359 --> 00:23:11,760 Speaker 5: that manufacturer will have initially it has a challenge in 352 00:23:11,800 --> 00:23:14,280 Speaker 5: the FDA, but eventually we'll get to a federal court 353 00:23:14,680 --> 00:23:18,119 Speaker 5: and be before a federal judge to make the argument 354 00:23:18,160 --> 00:23:21,520 Speaker 5: that this action is arbitrary and capricious and not grounded 355 00:23:21,560 --> 00:23:24,640 Speaker 5: in solid science. So there's no question in my mind 356 00:23:24,640 --> 00:23:26,600 Speaker 5: that the FDA is going to move forward here, but 357 00:23:27,000 --> 00:23:29,400 Speaker 5: the question of whether this actually stands is a very 358 00:23:29,400 --> 00:23:30,040 Speaker 5: big one. 359 00:23:30,400 --> 00:23:32,840 Speaker 1: Coming up next on the Bloomberg Law Show, I'll continue 360 00:23:32,880 --> 00:23:37,600 Speaker 1: this conversation with healthcare attorney Harry Nelson. Can the manufacturer 361 00:23:37,720 --> 00:23:41,760 Speaker 1: ignore the administrative process and go straight to court? I'm 362 00:23:41,840 --> 00:23:46,199 Speaker 1: June Grosso. When you're listening to Bloomberg, the Food and 363 00:23:46,240 --> 00:23:50,800 Speaker 1: Drug Administration said it initiated the process for a labeled 364 00:23:50,880 --> 00:23:55,000 Speaker 1: change to products containing a sit of minifin after President 365 00:23:55,000 --> 00:23:59,200 Speaker 1: Trump's announcement last week that warned about the unproven link 366 00:23:59,280 --> 00:24:02,840 Speaker 1: between women use of tail and all during pregnancy and 367 00:24:02,960 --> 00:24:07,040 Speaker 1: autism in children. Trump's announcement on the medication, which has 368 00:24:07,119 --> 00:24:11,040 Speaker 1: long been recommended during pregnancy to treat pain, fever, and aches, 369 00:24:11,359 --> 00:24:16,360 Speaker 1: has spurred confusion for patients and pushback from medical organizations. 370 00:24:16,640 --> 00:24:20,119 Speaker 1: I've been talking to healthcare attorney Harry Nelson, a partner 371 00:24:20,160 --> 00:24:25,040 Speaker 1: at Leech Tishman Nelson Hardiman. Since the manufacturer basically knows 372 00:24:25,080 --> 00:24:28,119 Speaker 1: what's going to happen down the road, can they jump 373 00:24:28,320 --> 00:24:31,160 Speaker 1: the administrative process and just go to court. 374 00:24:31,840 --> 00:24:35,320 Speaker 5: No, It's a fundamental principle and administrative law that you 375 00:24:35,480 --> 00:24:38,640 Speaker 5: have to wait for a final action. Judges don't want 376 00:24:38,640 --> 00:24:41,959 Speaker 5: to be making decisions about things that are still influx 377 00:24:42,080 --> 00:24:44,840 Speaker 5: in the regulatory process. So since there has been no 378 00:24:45,400 --> 00:24:48,440 Speaker 5: action taken yet by the FDA, just a warning that's 379 00:24:48,480 --> 00:24:51,679 Speaker 5: going to happen, the company doesn't have great recourse. It 380 00:24:51,800 --> 00:24:54,439 Speaker 5: essentially is sort of fighting. Has to really fight this 381 00:24:54,520 --> 00:24:57,600 Speaker 5: issue for the time being in the media and try 382 00:24:57,640 --> 00:25:01,119 Speaker 5: to hold on to public trust, you know, fight for 383 00:25:01,160 --> 00:25:04,440 Speaker 5: its stock price and build confidence, But judges do not 384 00:25:04,560 --> 00:25:07,600 Speaker 5: want to be addressing this issue until the FDA has 385 00:25:07,640 --> 00:25:08,600 Speaker 5: actually done something. 386 00:25:09,200 --> 00:25:12,560 Speaker 1: This is sort of wild, but could the company sue 387 00:25:12,720 --> 00:25:14,679 Speaker 1: Trump and Kennedy for defamation? 388 00:25:15,280 --> 00:25:18,119 Speaker 5: The principle of sovereign immunity here limits the action. We 389 00:25:18,160 --> 00:25:21,280 Speaker 5: already have the Supreme Court, by the way, broadening substantially 390 00:25:21,920 --> 00:25:25,200 Speaker 5: the things that the president is immune for actions taken 391 00:25:25,240 --> 00:25:29,880 Speaker 5: in executive office. But this is classically something where there's 392 00:25:29,920 --> 00:25:32,359 Speaker 5: a mixed case. So it's not like President Trump acted 393 00:25:32,400 --> 00:25:35,919 Speaker 5: without any scientific basis. It's just that there's evidence on 394 00:25:36,000 --> 00:25:38,600 Speaker 5: both sides of this issue. So I think it's going 395 00:25:38,640 --> 00:25:40,600 Speaker 5: to be very difficult for the company to think about 396 00:25:40,600 --> 00:25:42,960 Speaker 5: actually having a case against Trump or against RFK. 397 00:25:43,640 --> 00:25:46,359 Speaker 1: This is just, I mean, a chip of the iceberg. 398 00:25:46,800 --> 00:25:52,399 Speaker 1: The Trump administration or RFK his department is continuing to 399 00:25:52,440 --> 00:25:58,840 Speaker 1: put out information and guidance that contradicts medical organizations and 400 00:25:59,119 --> 00:26:06,320 Speaker 1: scientists and state health departments on vaccines and antidepressants. Is 401 00:26:06,400 --> 00:26:07,760 Speaker 1: anything being done about that? 402 00:26:08,000 --> 00:26:09,639 Speaker 5: I think you're right, by the way. A lot of 403 00:26:09,680 --> 00:26:12,160 Speaker 5: how I view this is this issue is in many 404 00:26:12,160 --> 00:26:16,720 Speaker 5: ways adjacent to this broader effort, whether it's around vaccines 405 00:26:16,960 --> 00:26:21,040 Speaker 5: or otherwise on public health to really undermine confidence and 406 00:26:21,119 --> 00:26:26,560 Speaker 5: agencies and to express more skepticism and to validate people 407 00:26:26,840 --> 00:26:29,920 Speaker 5: who are already incredibly skeptical of our public health agencies. 408 00:26:29,960 --> 00:26:34,600 Speaker 5: So I think a massive kind of political persuasive effort 409 00:26:35,080 --> 00:26:39,120 Speaker 5: has been underway kind of underpins all of these issues 410 00:26:39,200 --> 00:26:43,640 Speaker 5: around RFK and around our public health system. I think 411 00:26:43,680 --> 00:26:46,239 Speaker 5: that's an issue that's going to be decided in many 412 00:26:46,280 --> 00:26:48,600 Speaker 5: ways at the ballot box and by courts, which are 413 00:26:48,600 --> 00:26:52,320 Speaker 5: going to be called upon to decide what is arbitrary 414 00:26:52,760 --> 00:26:56,840 Speaker 5: and frecious and when government agencies are justified. So I 415 00:26:56,840 --> 00:26:59,840 Speaker 5: don't know that there's any recourse other than voting for 416 00:27:00,000 --> 00:27:05,040 Speaker 5: administrations that take positions on public health and science that 417 00:27:05,119 --> 00:27:07,320 Speaker 5: people support, or judges standing in. 418 00:27:07,920 --> 00:27:11,360 Speaker 1: Let's say the FDA approves the final rule and then 419 00:27:11,480 --> 00:27:14,600 Speaker 1: they're sued by the manufacturer. I mean, what kind of 420 00:27:14,640 --> 00:27:18,119 Speaker 1: decisions would the judges be making that this was arbitrary 421 00:27:18,160 --> 00:27:22,040 Speaker 1: and capricious, or would they be making decisions about the science. 422 00:27:22,720 --> 00:27:25,600 Speaker 5: I think the fundamental issue that judges have to confront 423 00:27:25,680 --> 00:27:28,440 Speaker 5: is the administrative prestide erect. That is the federal law 424 00:27:28,880 --> 00:27:32,639 Speaker 5: by which all federal agencies make rules, whether it's the 425 00:27:32,960 --> 00:27:36,639 Speaker 5: environmental protection agency, whether it's the Food and Drug Administration, 426 00:27:37,160 --> 00:27:39,399 Speaker 5: the Center for Disease Control. So it is a decision 427 00:27:39,440 --> 00:27:44,400 Speaker 5: about arbitrary and capriciousness, and whether the procedure by which 428 00:27:44,440 --> 00:27:47,320 Speaker 5: the decision was made was handled in a fair way. 429 00:27:47,840 --> 00:27:50,760 Speaker 5: In that process, inherently part of figuring out what's arbitrary 430 00:27:50,760 --> 00:27:54,119 Speaker 5: and capricious is assigning if the findings are supported by 431 00:27:54,160 --> 00:27:56,480 Speaker 5: the evidence, and if the conclusions are supported by the finding. 432 00:27:56,560 --> 00:28:00,000 Speaker 5: So I don't think it's possible for judges to completely escape, 433 00:28:00,200 --> 00:28:03,560 Speaker 5: you know, having opinions about science. That's really the tricky 434 00:28:03,600 --> 00:28:07,159 Speaker 5: part here is that the administration did operate on the 435 00:28:07,160 --> 00:28:10,680 Speaker 5: basis of some studies. It's just that we also see contrary, 436 00:28:10,800 --> 00:28:13,360 Speaker 5: much larger studies that totally contradict what they did. 437 00:28:13,840 --> 00:28:17,640 Speaker 1: And where does RFK Junior and the Health Department stand 438 00:28:17,800 --> 00:28:19,040 Speaker 1: on vaccines? 439 00:28:19,080 --> 00:28:22,560 Speaker 5: At this point, the administration has moved forward on a 440 00:28:22,600 --> 00:28:26,600 Speaker 5: complete policy shift on vaccine distribution, and I think like 441 00:28:26,640 --> 00:28:31,040 Speaker 5: a substantial amount has already happened to cut funding, cut distribution, 442 00:28:31,800 --> 00:28:33,959 Speaker 5: and change policy in a way that also is going 443 00:28:34,040 --> 00:28:37,800 Speaker 5: to drive lack of coverage in the insurance industry. There 444 00:28:37,800 --> 00:28:41,360 Speaker 5: are multiple lawsuits going forward. State attorneys general have brought 445 00:28:41,480 --> 00:28:45,080 Speaker 5: lawsuits to challenge vaccine policy. It's just that we have 446 00:28:45,280 --> 00:28:48,960 Speaker 5: not seen any legal action yet that is really undercutting 447 00:28:49,000 --> 00:28:51,680 Speaker 5: anything that the administration is doing. 448 00:28:52,040 --> 00:28:54,760 Speaker 1: And in some states, I know New York State, the 449 00:28:54,800 --> 00:28:59,240 Speaker 1: governor declared that, you know, vaccines would be paid for. 450 00:29:00,280 --> 00:29:02,480 Speaker 5: Right. So there's two different levels. One is a challenge 451 00:29:02,520 --> 00:29:05,600 Speaker 5: to the actions of Department Health, um Services and RFK 452 00:29:06,280 --> 00:29:11,520 Speaker 5: in terms of changing vaccine recommendations and access from government programs. 453 00:29:11,720 --> 00:29:14,960 Speaker 5: And the second issue is all of the commercial health 454 00:29:15,000 --> 00:29:19,360 Speaker 5: plans that are affecting their changing coverage. By the way, 455 00:29:19,640 --> 00:29:23,200 Speaker 5: a number of private organizations, the American Academy Pediatrics, the 456 00:29:23,200 --> 00:29:25,719 Speaker 5: American Public Health Association, and a number of other groups 457 00:29:26,080 --> 00:29:30,040 Speaker 5: have also filed suit claiming the actions are unlawful. We 458 00:29:30,120 --> 00:29:32,920 Speaker 5: have since nineteen eighty six, we've had the National Childhood 459 00:29:33,000 --> 00:29:36,040 Speaker 5: Vaccine Injury Act. There's been the arguments made that the 460 00:29:36,280 --> 00:29:39,680 Speaker 5: existing federal law preempts the actions that are being taken, 461 00:29:39,960 --> 00:29:42,520 Speaker 5: and that we already have a substantial amount of process 462 00:29:42,560 --> 00:29:45,480 Speaker 5: also here too under the Administrative Proceedure Act for how 463 00:29:45,560 --> 00:29:48,160 Speaker 5: this has to happen. So I do think there is 464 00:29:48,200 --> 00:29:51,200 Speaker 5: going to be a reckoning with the vaccine policy. The 465 00:29:51,280 --> 00:29:53,560 Speaker 5: question is how much will have already happened on the 466 00:29:53,600 --> 00:29:58,840 Speaker 5: ground based on narrower eligibility, based on the ending of 467 00:29:58,920 --> 00:30:02,760 Speaker 5: emergency use authorsations for COVID vaccines, and changes on all 468 00:30:02,800 --> 00:30:08,080 Speaker 5: these advisory and recommendation bodies that are adjusting vaccine schedules. 469 00:30:08,080 --> 00:30:10,200 Speaker 5: So there's a lot of change on the ground, but 470 00:30:10,680 --> 00:30:12,880 Speaker 5: there will be a reckoning at court at some point. 471 00:30:13,080 --> 00:30:16,720 Speaker 1: Has there been another administration where there was so much 472 00:30:16,920 --> 00:30:21,000 Speaker 1: change at the Health Department in such a short period 473 00:30:21,040 --> 00:30:23,960 Speaker 1: of time, sort of upending the norms. 474 00:30:24,560 --> 00:30:27,360 Speaker 5: I think it's safe to say that this administration has 475 00:30:27,440 --> 00:30:32,520 Speaker 5: set a new bar for activism and for lawsuits and 476 00:30:32,600 --> 00:30:36,400 Speaker 5: for controversy around federal health posse. It's not like we 477 00:30:36,560 --> 00:30:39,719 Speaker 5: never had these issues before. It's just that we've never 478 00:30:39,800 --> 00:30:45,960 Speaker 5: seen an administration that had such an ideologically aggressive position 479 00:30:46,840 --> 00:30:52,320 Speaker 5: on hostility to the pharmaceutical industry and to vaccines themselves, 480 00:30:52,360 --> 00:30:54,440 Speaker 5: and so many questions about science. It's you can go 481 00:30:54,480 --> 00:30:57,440 Speaker 5: back and you can cherry pick examples from the Obama 482 00:30:57,480 --> 00:31:01,520 Speaker 5: administration or from the Reagan administration where we had narrow 483 00:31:01,640 --> 00:31:05,080 Speaker 5: issues come up on particular public health points. But there's 484 00:31:05,200 --> 00:31:08,480 Speaker 5: never been an administration with the breadth and depth of 485 00:31:08,720 --> 00:31:13,120 Speaker 5: public health changes, really significant changes that we're seeing this year. 486 00:31:13,600 --> 00:31:16,880 Speaker 1: Thanks so much, Harry. That's healthcare attorney Harry Nelson of 487 00:31:16,960 --> 00:31:20,520 Speaker 1: Leech Tishman Nelson Hardiman. And that's it for this edition 488 00:31:20,560 --> 00:31:23,200 Speaker 1: of The Bloomberg Law Show. Remember you can always get 489 00:31:23,200 --> 00:31:26,360 Speaker 1: the latest legal news on our Bloomberg Law Podcast. You 490 00:31:26,400 --> 00:31:30,480 Speaker 1: can find them on Apple Podcasts, Spotify, and at www 491 00:31:30,640 --> 00:31:34,920 Speaker 1: dot bloomberg dot com slash podcast, Slash Law, And remember 492 00:31:34,920 --> 00:31:37,880 Speaker 1: to tune into The Bloomberg Law Show every weeknight at 493 00:31:37,920 --> 00:31:41,400 Speaker 1: ten pm Wall Street Time. I'm June Grosso and you're 494 00:31:41,480 --> 00:31:42,680 Speaker 1: listening to Bloomberg