This past Thursday, Secretary Robert F. Kennedy, Jr., announced a major restructuring of the Department of Health and Human Services.  The number of civil servants who will be fired is eye-popping.  Kennedy said that 10,000 HHS employees would lose their jobs as a result of this action, on top of the 10,000 other HHS employees who have already been driven out in this Administration.  Once they’re done with this restructuring, in other words, the Trump/Musk/RFK regime will have reduced the staff of the Department by nearly a quarter.

In addition to the mass firings, Kennedy and his team say that they are significantly reorganizing the offices of the Department.  Not only are they closing 5 of the Department’s 10 regional offices, but they’re also getting rid of 13 of the Department’s 28 divisions.  Some are being consolidated–5 divisions will be smushed together in a new Administration for Healthy America, 3 are being placed under a single new Assistant Secretary for Enforcement, 2 are being combined into a new Office of Strategy, and the Administration for Strategic Preparedness and Response is being absorbed into the Centers for Disease Control and Prevention (CDC).  One key agency–the Administration for Community Living (ACL), which served as the Department’s central administrator of, and advocate for, programs for disabled Americans–is being eliminated altogether.

The first thing to say about this restructuring is that it’s going to devastate important programs on which people rely.  The dismemberment of ACL will cause great harm to individuals with disabilities.  The dismantlement of the Substance Abuse and Mental Health Services Administration will kneecap the response to the opioid crisis–and at just the moment when it had been showing real success.  And the massive cuts to the Food and Drug Administration (losing 3,500 staff), the CDC (losing 2,400 staff), and the National Institutes of Health (losing 1,200 staff) will significantly hobble their ability to protect the public health.  

The restructuring announced last week is part of Trump, Musk, and RFK’s sustained assault on HHS and public health generally–an assault that will ensure that people lead shorter lives, that their lives will be worse, and that they will be easier pray for fraudsters and charlatans selling products with bogus health claims.  The restructuring is yet another gratuitous insult to the hard-working HHS career staff who have been serving the people in extremely difficult conditions.  These are highly skilled people who have sacrificed enormously of time and money so they can serve the public in some of the most essential ways, in some of the most stressful conditions imaginable.  They deserve our thanks and praise, not mass firings.

In many respects, the restructuring also likely violates the law–though the Trump Administration has revealed sufficiently few details that it is difficult to reach firm conclusions.  But is basically impossible to fire a quarter of HHS’s staff while still carrying out the departmental programs to which Congress appropriated funds.  So this action almost certainly reflects an illegal impoundment–a violation of Congress’s constitutional power of the purse.  In many cases, Congress just weeks ago specifically appropriated money to agencies, like ACL, that RFK now says he’s eliminating.  And Congress passed authorizing statutes that give specific powers and duties to some of the agencies RFK now says he’s eliminating.  Although the facts are still uncertain, there is lots of reason to believe that last week’s actions continue the Trump Administration’s pattern of contempt for the law and Congress’s authority.

But I also want to look at this action from a policy perspective.  One of the clear aims of the restructuring, in addition to just firing a bunch of people for its own sake, is centralization.  Trump, Musk, and RFK are trying to give departmental leadership more control over the policy decisions made by the various components of the Department.

In some ways, I can sympathize.  When I worked as HHS General Counsel, I often remarked that we were less a department than a federation–a group of semi-autonomous agencies, nominally under the leadership of a single cabinet official, but who often exerted very substantial independence in practice.  As one of the leaders of the Department who had to try to exert control–or even influence–over these agencies to move them to carry out the policies of the Biden Administration, I at times found the arrangement frustrating.  I know that the rest of the Department’s central leadership did as well.

And it’s notable that for the most part the independence of the different agencies merely rested on norms, rather than law.  In key instances, the statutes explicitly granted decisionmaking authority to the Secretary, who had then delegated that authority to the HHS component agencies.  The Secretary could, formally, take those delegations back at any point.  It was only very strong norms, combined with the threat that deviating from those norms would lead the courts to find agency actions arbitrary and capricious, that ensured that central Department leadership respected the relative independence of the agencies that make up HHS.

The new regime clearly doesn’t care about those norms–and indeed is pushing well beyond simply breaking norms to possibly breaking laws.  To the extent that the goal is to exert a greater degree of policy control over HHS’s component agencies, I, like almost anyone who has served in the Department’s leadership, can muster some sympathy for the impulse.

But I don’t at all think this reorganization is a good idea–and not just because of the way it’s so recklessly cutting essential staff, staff who were already stretched too thin by the failure to provide sufficient resources to key Department tasks.  There’s inherently a tension between politics and expertise in the administrative state.  And that’s especially true in public health agencies.  I’m very open to arguments that we should change the balance in particular ways here or there.  But a large-scale shift to centralized political control misunderstands both the role of politics and the value of giving great weight to public health experts here.

Start with politics.  One can hardly doubt that basically all of the key decisions made by public health agencies–even those that require very substantial expertise to understand and effectuate–rest not on resolving pure questions of science but on balancing and trading off different values.  So there’s a good argument that these decisions can’t be made by scientists wholly insulated from politics.

But where do those politics get expressed?  A push to centralized political control within the Department rests on a form of the unitary Executive thesis–that democracy is served if agency administrators must follow the policies of the President, because he is the only nationally elected official.  But this view ultimately overstates the role of the President, and understates the role of Congress, in democratic control of administrative agencies.  

The President is unlikely to engage with more than the smallest fraction of decisions made by any particular agency–and those who vote for him and thus provide his democratic legitimacy are likely to be even less engaged with those decisions.  Members of Congress, by contrast, often engage deeply with what agencies do.  And they incorporate their policy views into laws that, through the constitutional Article I process, garner congressional majorities and presidential signatures (or, in rare cases, congressional supermajorities that override presidential vetoes).  Those laws, accreting over time, reflect relatively broad support from across the democratically accountable branches.  They have far greater democratic legitimacy than do the whims of a particular President at a particular time–much less the whims of a cabinet secretary or whatever kind of official this Administration wants to say Elon Musk is. 

Congress has created public health agencies with a degree of independence even within HHS.  And they have acted over time to bolster that independence in various ways.  Those are democratic decisions that deserve respect–and that should be binding in our constitutional system.

Even aside from the democratic arguments, there are pragmatic reasons to defend a meaningful degree of independence for public health agencies–and to do so even when Congress has not mandated it.  For one thing, committing to independent decisionmaking by these agencies will often reassure the public.  The FDA, for example, has worked hard through the years to develop a well-warranted reputation for serious, independent consideration of the facts and science when deciding whether to approve drugs.  As a result, consumers by and large trust that FDA approval means that a drug is safe and effective.  And because consumers trust FDA approval, researchers and manufacturers are encouraged to invest and bring new drugs to market.  

To be sure, we continue to fight over particular decisions–some pharma companies think it takes too long for FDA to approve their drugs, some consumer advocates think FDA is too willing to approve some treatments based on speculation–but the system as a whole protects consumers and manufacturers, and ultimately serves the public health.  I could make similar points about the other big public health agencies like CDC and NIH.  We can have good arguments about particular decisions they’ve made, but the relative independence of all of these agencies has been crucial to ensuring that people live longer, better lives, to protecting consumers, and to promoting research and innovation. 

It makes sense to consider reforms that might provide a check on insularity and groupthink within public health agencies, or to bring public values more explicitly to bear on their decisions.  But centralized political control by the President or his minions will undermine the institutional structure that has served the public well.  It will lead to more hydroxychloroquine-type debacles, undermine public confidence in public health regulators generally, disregard the repeated decisions by Congress to protect a zone of independence for those regulators, and ultimately harm both health and the economy.

In a post-pandemic world, public health agencies have a lot of work to do to rebuild public trust.  If that weren’t true, RFK would not be in the position he’s in.  But centralized political control is the wrong approach.  It will ultimately destroy one of the great successes of American government–with grievous effects.