In the second episode with Jason M. Goldman, MD, MACP, he touches upon the legal side of the order and how it may affect the childhood vaccine schedule.
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“Once issued, federal agencies and officials generally treat an executive order as presumptively lawful and will begin to effectuate the order by issuing regulations, revising policies, altering enforcement priorities, and even changing content and language on government websites and publications,” according to the American Constitution Society (ACS).1
ACS notes an executive order can be invalidated. Challenges to an executive order can come at many stages. According to ACS, once an executive order is issued, any party with standing—meaning they would be harmed if the order took effect—can file suit against the president and the agencies or officials responsible for carrying it out. Such a lawsuit would ask the court to declare the order unconstitutional or unlawful and to block the government from enforcing it. A second opportunity for this kind of relief arises later, when a federal agency moves to implement a new regulation, policy, or enforcement action based on an order that is unconstitutional or illegal—at that point, affected parties can again seek a court declaration and an injunction.1
“The issue, as I understand it, with executive orders is it's just a piece of paper until it's acted upon. So anything can be written, but until something is actually done or changed, and there's a final agency action, it can't be challenged,” said Jason M. Goldman, MD, MACP, immediate past president of the American College of Physicians (ACP). “You can't, as I understand it, sue someone for threatening to trespass, they have to actually trespass on your property before you can do something. So when and if HHS or the Secretary[Kennedy] take action upon this and fundamentally change the vaccine schedule, I certainly hope there will be legal action because this is unconscionable and dangerous for our children and the public health infrastructure.”
Another aspect of the order to consider is the ability of the attorney general to challenge individual states’ statutory obligations regarding religious and medical exemptions.
"The attorney general shall take appropriate measures to further meritorious legal actions challenging State laws that conflict with States' constitutional and Federal statutory obligations related to parental authority, religious freedom, disability accommodations, and equal protection under the law, including, to the extent applicable under Federal law, States' obligations to provide religious and medical exemptions from childhood and adolescent immunization requirements," the order reads.2
It remains to be seen how this plays out for state-level vaccine mandates—particularly school immunization requirements. It appears the Trump administration is prepared to call out states in providing religious and medical exemptions, so the attorney general could end up targeting states that don't offer those exemptions, or that offer them only narrowly, in their school vaccination requirements.
“I'm not an attorney, so I can't speak to the legal aspect…and one of the issues with this religious exemption, I've spoken to many religious leaders from many different faiths, and none that I have spoken to have ever said there is a religion that opposes vaccines. In fact, many religions promote caring for self, caring for others, caring for the body, making yourself healthy, and making others healthy, and that is what vaccines do. So the religious exemption I am very concerned with and have always been because it is just another way for people to avoid what is good and safe to protect themselves and to protect others. So I'm concerned that this new aspect of the executive order is going to undermine protections for giving vaccines and for patients being able to receive them.”
This is the second episode of the 2-part series with Goldman. In the
