Vaccines and Ballrooms

More mailbag questions.

Happy Monday, everyone. I received so many great questions ahead of last week’s mailbag column that I thought I would answer two more this morning.

These questions concern the legal status of two Trump actions: his recent executive order on vaccines, and the ongoing construction of the White House ballroom.

If you’ve had questions about one or both of these issues, this morning’s newsletter is for you.

As always, you can submit questions for me here or by emailing me at gabe@wakeuptopolitics.com.

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Q: Is it legal for Trump to create executive orders, like on vaccination, that run afoul of science?

In general, there is no freestanding requirement that executive orders comply with science. After all, what would that mean? Who, or what, would constitute the “science” that cannot ever be contradicted?

However, there are specific situations where the federal government must consult scientific advisers before making a decision, and vaccines do happen to be one of those areas.

Let’s start with the executive order in question here, “Delivering Gold Standard Childhood Vaccine Recommendations for Americans,” which was issued by President Trump earlier this month.

Federal childhood vaccine recommendations are split into three categories: vaccines recommended for “all children,” those recommended for “certain high-risk groups or populations,” and those recommended based on “shared clinical decision making,” which means parents are advised to make a decision in consultation with their child’s doctor.

Below, via the Congressional Research Service, you can see how Trump’s “Gold Standard” recommendations deviate from the child vaccine recommendations in place before he took office — including downgrading the Covid vaccine from “All children” to “shared clinical decision making” and removing the monkeypox vaccine (formerly recommended for high-risk groups) from the list entirely:¹

Remember, though: executive orders are generally not the president saying, “I will do X,” because there are only so many things the president is empowered to do under laws and the Constitution. Rather, executive orders are the president telling an executive agency, “You should do X,” in an area where (in theory) a statute gives that agency the power to do something.

In this case, there is no law that gives force or effect to childhood vaccine recommendations from the president. That’s why, in his order, Trump directed “each executive department and agency” to “review” his recommendations and “take any appropriate steps to advance them, to the fullest extent allowable by law.”

When it comes to vaccines, the main executive agency that applies to is the CDC.

Funnily enough, Trump’s “Gold Standard” recommendations are identical to vaccine recommendations that the CDC already tried implementing earlier this year. However, a federal district judge blocked that effort in March, and here’s where the requirement for scientific rigor comes in.

Judge Brian Murphy paused the CDC’s recommendations because the agency had not consulted the Advisory Committee on Immunization Practices (ACIP), a scientific panel set up to offer advice on vaccines to the federal government. Murphy’s ruling pointed out the several places in law that Congress had required ACIP to play a role before decisions on vaccines are made. (The Trump administration argues that those are only specific situations that require ACIP consultation, and that its action falls outside of those requirements.)

Partially because of the failure to consult ACIP, Murphy ruled that the CDC recommendations likely violated the Administrative Procedure Act, the 1946 law that prohibits agency actions that are “arbitrary” or “capricious,” or taken “in excess of statutory jurisdiction.” This is a statute that frequently trips up presidential administrations trying to take sweeping action, as we’ve discussed before.

In short: Trump cannot just alter vaccine recommendations himself, he can only order the CDC to do it, which means this executive order will only mean anything if the CDC listens to it. But the CDC has already tried to do something similar, and if the agency follows Trump’s order, it will likely fall into the same trap its last vaccine push did: the fact that, per Judge Murphy, the CDC also cannot alter vaccine recommendations itself, without listening to scientific advisers.

It’s also relevant to keep in mind that CDC’s recommendations are just that: recommendations, not binding on doctors (who actually administer the shots) or states (which decide which vaccines are required for schools).

As is often the case, because of the limited role the president plays in our constitutional scheme, executive orders can end up being more flash than substance.

Q: Why when the courts have said the Trump Ballroom cannot go forward, he can continue to build during appeal? How many appeals can any one lawsuit have? Does everything have endless appeals until it gets to the Supreme Court? Regular people don’t have this.

There are a few questions to unpack here. First, to answer the “endless appeals” question, there are three levels at which litigants can bring cases in the federal court system.

Cases start at the district court level. The loser at that level can then appeal to a circuit court (also called an “appeals court”). The loser at that level can then appeal to the Supreme Court.

It’s important to note that regular people do have this! Anyone who loses a district court case can appeal to the circuit courts, and anyone who appeals at the circuit courts can appeal to the Supreme Court — you don’t have to be president of the United States or anything like that. Granted, you can’t force the Supreme Court to actually agree to hear your case, and the president certainly does have a better chance at that.

But you do both get to try under our system, and the Supreme Court does take up cases from “regular people” all the time (and also recently refused to hear a case from the president). This is true on both the court’s normal “merits” docket and its emergency “shadow” docket.

Earlier this month, a California woman who owned a dog named Bruce filed an emergency petition with the Supreme Court asking the justices to pause a lower court ruling ordering that Bruce be euthanized after he bit three people. The court denied the request, but the fact that Bruce the dog got all the way to the Supreme Court underlines the idea that the same appeals process is available to everyone (even every dog).

But the real question here was about the White House ballroom, and why construction on it has continued despite a string of adverse court rulings.

The answer is something called an “administrative stay,” which is when a court pauses a ruling from a lower court in order to give itself time to make a decision on something.

In this case, Judge Richard Leon ruled on April 16 that construction of the ballroom was likely unlawful. On April 17, a three-judge panel of the U.S. Circuit Court of Appeals for the D.C. Circuit administratively stayed Leon’s ruling until it could make a decision.

Then, on August 7, the same three-judge panel upheld Leon’s ruling, but still kept it frozen, adding a new 14-day stay to allow the Trump administration time to appeal to the Supreme Court, which it then did.

On Friday, just before the 14-day deadline was about to expire, Chief Justice John Roberts entered an administrative stay of his own, which will last until the full Supreme Court rules on the administration’s emergency petition on the ballroom.

None of this is out of the ordinary. The idea here is that a court should be very careful before intervening in private or public conduct, so a given ruling shouldn’t take effect until the next rung on the appellate ladder has had a chance to look it over.

In cases where a ruling requires someone to do something, an administrative stay skews to the benefit of the person who doesn’t want to do something. But the ballroom case is a case where a ruling required someone to stop doing something. In a case like that, an administrative stay will generally skew to the benefit of the person who does want to do something — here, Trump wanting to build his ballroom.

As a result, ballroom construction can continue during this legal gray area; in fact, according to the White House, 250 people are now working on the construction 20 hours a day, seven days a week. The administration says that the ballroom is now about two-thirds complete.

Administrative stays keep the status quo in place; in this case, there is no question that the status quo favors Trump, although it is not unlike any other situation where an administrative stay allows someone to keep doing something they would otherwise be prohibited from continuing.

We’ve seen this with previous Trump cases as well, including the tariffs case, where lower court rulings against the tariffs were stayed as they worked their way through the courts (before the Supreme Court eventually struck the tariffs down for good). In the tariffs case, the fix for this period of time where the import taxes were (illegally, per the Supreme Court’s eventual ruling) in place has been refunding the businesses that paid the tariffs. So far, about $129 billion in refunds have been initiated (out of $166 billion that the administration collected).

Admittedly, it’s harder to know what the remedy could be here if the Supreme Court did eventually rule against the White House ballroom (though I wouldn’t necessarily bet on them doing so²). Judge Leon, however, hinted at one possible (though hard-to-imagine) outcome in his initial ruling.

“The Court gives fair notice to Defendants, however, that any above-ground construction [while the ruling is stayed] that is not in compliance with my Order is at risk of being taken down depending on the outcome of this case,” Leon warned.

1. Trump’s recommendations also called for the combined measles, mumps, rubella (MMR) vaccine to be “administered in three separate single-disease shots once such products are domestically available.” However, none of those vaccines are currently licensed as single-disease shots in the U.S., and it could take up to a decade before they become available.

2. Litigants need standing before they can challenge something in court, and the standing theory put forward by the group challenging the ballroom isn’t the strongest. On the three-judge D.C. Circuit panel that handled the case, the two Democratic-appointed judges ruled against Trump; the one Republican-appointed judge ruled for him, citing standing. I would not be surprised if the Supreme Court majority does the same thing, declining to rule on the merits of the ballroom but ruling that the plaintiffs lack the standing to sue.