RFK Jr is reportedly going to sack his vaccine advisory committee. His power to slant the committee, however, is limited by rule: Agency chiefs must replace fired members w/ a “balanced” committee under 41 CFR § 102-3.60… /1 www.medpagetoday.com/infectiousdi... - ThreadSky

rickhills.bsky.social • 21 hours ago

RFK Jr is reportedly going to sack his vaccine advisory committee. His power to slant the committee, however, is limited by rule: Agency chiefs must replace fired members w/ a “balanced” committee under 41 CFR § 102-3.60… /1 https://www.medpagetoday.com/infectiousdisease/vaccines/114311

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rickhills.bsky.social•21 hours ago

What does it mean for an advisory committee to be “balanced”? That turns out to be a controversial question, explored by Mark Brown here: https://www.jstor.org/stable/pdf/20299759.pdf A DC Circuit panel split three ways on the question back in 1989 in Public Citizen v. Nat’l Advisory Committee… /2

rickhills.bsky.social•21 hours ago

Judge Silberman declared that the statutory question was non-justiciable: “I do not think…the FACA provides us with legal principles to determine whether a particular advisory committee is ‘fairly balanced in terms of the points of view represented.’” /3 https://law.justia.com/cases/federal/appellate-courts/F2/886/419/19379/

rickhills.bsky.social•21 hours ago

Anyway, I’d like to know what @danielhemel.bsky.social @ajosephoconnell.bsky.social @martylederman.bsky.social @adambcox.bsky.social @stevevladeck.bsky.social @nbagley.bsky.social @nicholasbednar.bsky.social @narosenblum.bsky.social @jennifernou.bsky.social think.

ajosephoconnell.bsky.social•19 hours ago

DC Circuit returned to issue in 2020 on Pruitt's FACA directive, finding Act provided “meaningful standards” for court review under APA's §701(a)(2). 956 F.3d 634. 1st Circuit agreed. 954 F.3d 11 (remanding to district court to see if policy prevented fairly balanced committees). Standing is tricky.

narosenblum.bsky.social•11 hours ago

I haven’t thought about the statute at all. But as a conlaw matter, these folks aren’t officers and aren’t executing the law, so I don’t think there’s any Article II problem with Congress putting all kinds of rules and conditions on them, is there?

ajosephoconnell.bsky.social•11 hours ago

Agreed. And Congress puts partisan balance requirements (or lack of partisanship mandates) on some officers.

profdanwalters.bsky.social•11 hours ago

Is there an argument that the "fairly balanced" requirement can't be unreviewable under 701(a)(2) in light of Loper Bright's premise that all statutes must have a single, best interpretation?

rickhills.bsky.social•3 hours ago

Maybe that single best interpretation is that Congress wanted no judicial review of this particular provision. Whether there is a statutory political question doctrine remains IMHO an interesting question, despite Zivotofsky. https://www.yalelawjournal.org/comment/theres-no-such-thing-as-a-political-question-of-statutory-interpretation-the-implications-of-zivotofsky-v-clinton

newmexter.bsky.social•11 hours ago

Isn’t ACIP’s schedule recommendations anyway, that admin/sec can mess with before making them official? The missed bit in most coverage is… well, coverage… the (eventual) recs are what federal and private ACA marketplace plans cover for free as preventative (=⬇️ vax uptake without banning anything).

lapu2x.bsky.social•21 hours ago

Or create a new Tarot card committee on pandemic prediction.

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