Who is in charge at the US Centers for Disease Control and Prevention (CDC)? The answer is more complicated than it may seem.
With no confirmed or acting CDC director, Robert F Kennedy Jr has direct control over the agency, allowing him to sign off – or not – on vaccine recommendations, according to legal experts.
Yet Kennedy, the secretary of the US Department of Health and Human Services (HHS), testified before a Senate committee in May that someone else is running the agency – creating confusion that could lead to legal challenges.
“There’s not a CDC director or acting director. Essentially, RFK Jr is the director of the CDC,” said Paul Offit, professor of pediatrics at the University of Pennsylvania Perelman School of Medicine.
Kennedy now has “a lot more opportunity to actually influence the outcome of these decisions and to take actions in the absence of a Senate-confirmed director”, said Renée Landers, professor and director of the health law program at Suffolk University Law School in Boston.
The dismissal of 17 independent vaccine advisers and their replacement with less experienced advisers, some of whom have histories of anti-vaccine activism, is “very concerning”, especially given Kennedy’s rejection of germ theory and his own anti-vaccine activism, Landers said.
On Thursday, the independent vaccine advisers appointed by Kennedy voted to ban thimerosal, a preservative (also known as thiomersal) with a demonstrated safety record, from 4% of flu vaccines in the US.
The remaining 96% of flu vaccines, as well as all other childhood vaccines, were already free of thimerosal out of an abundance of caution, despite decades of research indicating the preservative’s safety. The move will make it harder for some people to access the flu vaccine.
The recommendation would normally be taken up by the CDC director, either to reject, or to implement as official, guidance from the agency. But for now, those decisions go directly to Kennedy, who has already exercised these capabilities before.
On 13 May, “with pending confirmation of a new CDC Director”, the health secretary adopted the recommendations for Chikungunya vaccines to be officially recommended by the CDC, according to the agency’s website.
Kennedy did not sign off on the committee’s votes for two other vaccines against RSV and meningitis.
Those vaccines, recommended in April by the independent advisers whom Kennedy dismissed this month, still have not gotten official CDC recommendations; it’s not clear whether or when they will.
Kennedy also recently directed the CDC to change its Covid vaccine recommendations, softening the recommendation for children and ending it for pregnant people entirely, despite strong evidence that pregnancy is a major risk factor for severe illness and death.
“It is concerning that the power vacuum leaves open his ability to make these decisions that are inconsistent with scientific consensus,” Landers said.
Congress introduced a new law in 2023 that directors of the CDC must now undergo Senate confirmation. This appointment is the first time the CDC director has gone through the process.
“It is a little bit of uncharted waters,” Landers said.
David Weldon was first nominated and then withdrawn hours before his Senate confirmation hearing in March.
Susan Monarez served as acting director from 23 January until she was nominated on 24 March, at which point she stepped down. Once someone has been nominated for director, they cannot serve as acting director.
Monarez testified in her Senate confirmation hearing on Wednesday, but it’s not clear when lawmakers will vote on the nomination,
In the absence of an acting director, the head of HHS has control of the agency, according to the Federal Vacancies Reform Act of 1998.
Signing off – or not – on CDC recommendations cannot be “delegated down” to other officials under the vacancies act, said Anne Joseph O’Connell, a professor at Stanford Law School; “it can only go up” to the HHS secretary.
“What’s unusual about this situation is that we generally think having exclusive duties go ‘up’ to the agency head when there is a lower-level vacancy is a good thing. But here many don’t trust the secretary on these matters,” O’Connell said.
Kennedy put forth a different name for who is in charge of the CDC in May testimony before the Senate’s health, education, labor and pensions committee.
“Who is the acting CDC director?” Lisa Blunt Rochester, the Democratic senator from Delaware, asked.
“The acting director was Susan Monarez, but she is now up for permanent director, so she’s been replaced by Matt Buzzelli,” Kennedy said, describing Buzzelli as “a public health expert”.
But there’s no indication that Buzzelli, a lawyer who is listed as chief of staff in the office of the CDC director, is acting director, nor is he qualified for the position.
“Buzzelli cannot be the acting CDC head,” O’Connell said. He’s not the first assistant to the CDC director, he’s not Senate-confirmed, and he did not serve 90 days in the year before the last director of the CDC left, O’Connell said: “There is no wiggle room.”
The lack of clarity is compounded by the Trump administration’s non-compliance with information requirements, experts said. The CDC, along with other agencies, is required to update each year an office of personnel management site about who holds which jobs, a deadline the agencies missed in March.
Buzzelli “has been carrying out some of the duties of the CDC Director as the Senior Official, as necessary, and is surrounded by highly qualified medical professionals and advisors to help fulfill these duties as appropriate”, Andrew Nixon, HHS director of communications, told Stat News in May. (HHS did not respond to the Guardian’s media inquiry.)
Such actions could open the officials up to legal challenges. Without official documentation naming Buzzelli and other decision-makers to official positions, they would not have the designated authority to make certain decisions, which means their actions could be challenged.
For instance, they may not be authorized to enter into new contracts or end prior agreements early with state, local, tribal and territorial governments – potentially opening up any such actions to lawsuits.
“The person who takes the action has to be someone lawfully appointed to the position. To the extent that agencies try to skirt that kind of requirement, it does leave the decisions vulnerable to legal challenge,” Landers said.