[Editor’s note: This transcript was generated using both transcription software and a human’s light touch. It has been edited for style and clarity.] 

Julie Rovner: Hello, and welcome back to “What the Health?” I’m Julie Rovner, chief Washington correspondent for KFF Health News, and I’m joined by some of the best and smartest health reporters in Washington. We’re taping this week on Thursday, Jan. 30, at 1:30 p.m. As always, news happens fast and things might have changed by the time you hear this. So, here we go. 

Today we are joined via videoconference by Sandhya Raman of CQ Roll call. 

Sandhya Raman: Hi, everyone. 

Rovner: And Sarah Karlin-Smith of the Pink Sheet. 

Sarah Karlin-Smith: Hi there. 

Rovner: Later in this episode, we’ll have my interview with University of Michigan law professor Nicholas Bagley, who will break down for us how the federal regulatory system is supposed to work when it comes to health. But first, how is it still January? 

We are coming to you a little later than usual today because we have been watching hearings on Capitol Hill, where Health and Human Services Secretary-designate Robert F. Kennedy Jr., who was called a “predator” in a video earlier this week posted by his cousin Caroline Kennedy, appeared for his confirmation hearings. On Wednesday, he was at the Senate Finance Committee. Earlier today, he was at the Senate Health, Education, Labor, and Pensions Committee. A reminder, only the Finance Committee actually gets to vote on whether to send this nomination to the floor. I think it’s safe to say there was a lot to chew over in these two days of hearings. But first, do we have any idea how likely he is to be confirmed by the full Senate? 

Karlin-Smith: It seems like it’s going to be close. Yesterday, I didn’t hear any notable concerns necessarily from Republicans. It seemed like all the Senate Finance Republicans didn’t have any huge issues with his nomination, although I guess I should say one of the people on that committee is the chair of the one we saw today, and he didn’t quite make his opinion known. 

And then today the Senate health committee chair, Bill Cassidy, who is a doctor, made it very clear that he is not happy with Kennedy’s views on vaccines, and that he talks about some very personal moments in his career where he experienced the death of a particular young woman who was unvaccinated and it could have been prevented if she was. And Cassidy didn’t quite indicate where he’s going, but it seems like it may be hard for Kennedy to get him to a yes, because it seemed like Cassidy was giving him a lot of chances today, and oftentimes Kennedy was kind of saying the wrong answer of what Cassidy wanted to hear on vaccinations. And there’s a few other Republicans, I think, in a similar boat there, so it’s probably going to be close, but— 

Rovner: Yeah, and of course Cassidy, who’s the chairman of the health committee, is one of the Republican votes on the Finance Committee, too. There are several members who are on both committees. It was interesting, sort of, to watch what they said yesterday compared to what they said today in terms of questioning. But certainly there don’t seem to be any Democrats who are leaning his way, which is, I mean, we saw when he was officially nominated there were a lot of Democrats, not necessarily in the Senate but around the country, who agree with some of the things he says about regulatory capture by the drug industry and the food industry and ultra-processed foods. He does say a lot of things that are of interest and agreed to by Democrats, right? 

Karlin-Smith: Yeah, there were a few people I was watching because there were some inklings again that maybe they would vote to confirm him. One was Sen. [Raphael] Warnock from Georgia, who there was no indication, again, in his remark that he had interest in supporting him. The other was [Sen.] Sheldon Whitehouse, who apparently was Kennedy’s law school roommate and friend. And again, there was no indication of support or openness, not that we actually know how he was going to vote. And then the third person actually was Sen. Bernie Sanders, who at the hearings, both days, he did express some of his interest in some of the ideas that Kennedy has espoused. But yet again, I think the things they disagree on sort of outweigh the things where they can see agreement. And I think they’re seen as so problematic that they just totally cancel out any place where they could work together. 

Rovner: Just a reminder, Cassidy is super important here because RFK Jr. can’t afford to lose more than three Republican votes, assuming all the Democrats and independents vote against him, which is not necessarily what we know. And we assume but don’t know that the three senators who voted against [now-Defense Secretary] Pete Hegseth — Sen. Lisa Murkowski, [Sen.] Susan Collins of Maine, and Sen. Mitch McConnell, who’s a polio survivor and has said things about Kennedy’s vaccine statements — we assume those are likely to be no votes. So Cassidy would be the fourth and therefore decisive one. And I think that’s why everybody’s been watching him so closely. Sandhya, I see you nodding. 

Raman: I think even if [the] health [committee] is not voting on this, he’s the head of health, he’s a doctor, and if he votes no, that gives other Republicans who might be saying yes or leaning yes cover to kind of switch if they want to. Once you have one fall, then it’s easier for others in a lot of cases. So I think that after this weekend we’ll have more information. Cassidy’d said he wanted to ask additional questions, whatever those might be, and if those, where the cards may fall. 

Rovner: Yes. I believe Cassidy’s parting words in the hearing were, You might be hearing from me this weekend. Of course, if I were Cassidy and I were thinking about voting no, I don’t think I would blast it out right now to give time for everybody to come back at him, so you could see how he might want to play his cards a little bit closer to the chest. 

Well, for those who did not sit through the hearings like we did, I will say — I went back and counted — this is my 11th HHS secretary confirmation set of hearings that I have watched. And I could say that RFK Jr. is easily the least knowledgeable nominee that I have ever seen, at least in how the Department of Health and Human Services works. At both committees he was asked pretty easy questions about Medicare and Medicaid and showed that he does not understand either program, which together cover more than a hundred million Americans. What stood out to each of you? 

Raman: I think those, definitely, especially given that he’d fumbled on that the first hearing, the fact that that comes up again from Sen. [Maggie] Hassan asking questions on that in both hearings, that he stumbles again on the issues within the CMS [Centers for Medicare & Medicaid Services] umbrella. And I think yesterday he’d had some questions about EMTALA [the Emergency Medical Treatment and Active Labor Act] and emergency pregnancies, and again he— 

Rovner: Yeah, going to ask about abortion separately in a second. 

Raman: Yeah, so I think the fact that there have been major issues within the HHS umbrella that seemed new to him doesn’t bode well for what I saw. 

Karlin-Smith: One of the things that stood out to me was that he often got caught in lies or semi-lies and stuff around some of his past statements. And again, that just seems like a failure of the various staff in the Trump organization to really prepare him to know how to handle this. Because if you have such a public record like that, you know these things are going to come up. And even there was one exchange that happened yesterday, and the same comment was brought up today with Warnock, about comments he made comparing the effects of giving people vaccines to actions of the Nazis or abusive priests. And he says, I didn’t say it. And then he sort of says, But this is what I said, which is basically the same thing. 

And then the other thing I was going to say is I’ve noticed sort of a shift, since [Donald] Trump officially won the election and was getting closer to being in office, of the drug industry, some head CEOs really being like, You know, actually, we think [President] Trump will be positive for the industry. And they seem to be kind of ignoring some of the anti-vaccine sentiment and other things, including Trump’s populist appeal on drug pricing. 

Just some of the comments of Kennedy actually surprised me. We sort of know he’s skeptical of a lot of drugs, prescription drugs, being overused in the U.S. But again, both days he made a comment suggesting there’s a study that says prescription drugs are the third-leading cause of death in the U.S., which is not correct, and having a hard time finding what study he was referencing. But the CDC [Centers for Disease Control and Prevention] does have sort of accidental and unintentional injuries as the third-leading cause of death. But that includes a lot of stuff beyond just things that may impact prescription drugs, like opioid overdose deaths. So that’s going to include every car crash in the U.S. that causes a fatality. It’s going to include drownings, a lot of things that have nothing to do with prescription drugs. And that just seems like a big thing to both get wrong as an HHS nominee and also, again, something that’s kind of concerning for people that are interested in medical research and believe there is a positive benefit to pharmaceuticals. 

Rovner: One of the things that he said a lot, which is a safe thing for a nominee to say when being questioned by senators on both sides, is that he would be in line with what the president wants. Of course, in this case, there’s a lot about Trump that we don’t know what he wants, particularly on issues that are not his very top priorities like immigration. So on health care — on Will you continue the drug negotiations that were started under the Biden administration? — he’s like, I’m going to carry out President Trump’s policies. And this is where, Sandhya, I was going to ask about abortion, because he’s obviously, and we’ve talked about this a lot, a lot of anti-abortion groups who are very suspect of him because he was a Democrat until last year and he was very much pro-abortion-rights, and now he says that he will basically do what he is told. Is that essentially how you took it? 

Raman: Yeah. And I think the interesting thing was when in some of that questioning, the way he answered wasn’t I’d had a change of heart or I had a conversation with someone that shifted my perspective or anything like that. He just said: I will do what the president says. But yes, I made those statements. There was no bridge between those. And kind of like you said, if we don’t have clarity on some of those things from Trump, it’s hard to know which way he might go, how high that could be a priority for him. 

I mean, there were certain things that we can kind of expect if he’s confirmed that he might do, just because they have been happening throughout the years under Republican administrations and some of those commitments that were kind of made. But I think this has not really been a top issue for him in general. Like what we were saying before, he wasn’t familiar with EMTALA. That has been a huge thing over the past couple years. The federal government is involved with lawsuits and into kind of upholding that law and making sure that hospitals give emergency care to pregnant women that might need an abortion. 

Rovner: And there’s a Supreme Court case pending on this. 

Raman: It’s surprising that that would be unfamiliar for him given how big of an issue that is. And I think him not being familiar is not even just an issue for Democrats. For Republicans that want that assurance, they would likely want him to be familiar so that when we have HHS implementing guidance later on, that it would go in line with how they would want to interpret EMTALA. So that was one that just really stood out to me. 

Rovner: Yeah, I think I was taken aback, just the idea that he didn’t know what it was and he didn’t even know that the Medicare program basically has the ability to enforce rules for hospitals because it gives so much money to hospitals. Of the many things that made me kind of raise my eyebrows, that made me raise my eyebrows a little bit. I think I put this on social media. Whoever prepped him for these hearings did not do a very good job, because there was some really, really basic stuff any nominee for this job should have known, for much lower jobs should have known, that he appeared not to. 

Well, that was hardly the only news this week. It’s been pretty crazy. It is still Thursday, I think. We’re going to go back a little bit to what I’m calling the “funding freeze fiasco.” When we left off last week, much of science at the Department of Health and Human Services had been “paused,” she puts in air quotes, to use the administration’s word. Meaning no outside communication, no official travel, not much purchasing, and lots of panicked scientists at National Institutes of Health, the FDA [Food and Drug Administration] and the CDC, just to name a few of the agencies. 

Well, it turns out that was just a preview. Monday night, the Office of Management and Budget, whose nominated leader, Russell Vought, has not been confirmed by the Senate yet, issued a memo calling for a halt to all federal grants and loans, with the named exceptions of Social Security and Medicare, starting at 5 p.m. Tuesday. On Tuesday morning, the White House tried to say that the freeze wasn’t supposed to affect programs that provide benefits to individuals, things like food stamps or welfare. But by midday, reports were coming out from around the country about state officials shut out of Medicare payment portals and grantees of various other health programs, including community health centers and federal family planning clinics, unable to access payment systems as well. 

Tuesday afternoon, a federal judge delayed the freeze until Monday, meaning a few days from now. But on Wednesday morning, OMB issued a memo repealing the earlier memo. Shortly after that, White House press secretary Karoline Leavitt said the freeze was actually still on for programs that may violate Trump’s executive orders trying to stop diversity, equity, and inclusion programs, as well as many programs created by the Inflation Reduction Act. A judge cited that confusion and Leavitt’s tweet and blocked the entire effort Wednesday afternoon. So where are we now? And bigger question, does the president really have the authority to just stop payment of so many federal programs? 

Raman: It’s confusing to every single person that I have talked to in different swaths of health care in that this is very unprecedented. They don’t know how to react. And that has been on different days of the week depending on which part of the timeline that we’ve been in. And a concern that I’ve heard from multiple folks has been that despite whatever is kind of written at the time, there’s the chilling effect of the confusion making something sort of overimplemented, even if it only applies to some pocket of funding or some programming. It’s just people being scared and avoiding it just so that their whole program or whole whatever doesn’t get targeted in something. And I’m not a lawyer. I can’t tell you what falls as legal or not legal. But I think that the legal experts that I’ve heard from have really questioned that they have the authority to do all of this. 

Rovner: I have a friend who works for a nongovernmental organization that works with many governmental organizations, and she said last night, “We have 13 different stop-work orders.” 

Karlin-Smith: I was going to say the other thing about the situation besides the legality of it was when they put out the initial order, it was unclear whether Medicaid was a part of it. It wasn’t specifically exempted as Medicare and Social Security were. And then the next day, all these state Medicaid portals were down and they issued this other memo that says, No, no, sorry, we didn’t mean to not accept Medicaid and SNAP [the Supplemental Nutrition Assistance Program] and these other programs that provide critical health food benefits. And it seems like part of what might have been going on is that they just don’t understand how all of this funding works and that Medicaid sort of operates through grants, right? The states get the money, and then it goes to people. And similarly with a lot of other programs, it’s not a direct payment to a person or a direct distribution of goods. 

And again, I think it’s similar to the experience of listening to RFK. It does make you wonder how much of the people that are running the government understand what the government is, what it entails, and how to operate a government appropriately and think about the consequences ahead of time. And now again, I think as Sandhya mentioned initially, maybe I think some of this confusion and chaos is just the point. They don’t care. But if they break things, it is concerning that when they’re making policy, they don’t seem to know what they’re doing. And then that federal workers feel like they have to follow these unclear policies and maybe doing almost too much because of it. And we’ve seen that maybe with some of the rollbacks of NIH spending after they froze certain spending, and they’ve allowed some of the HIV treatment distribution to go on worldwide. But the fact that people felt like they had to freeze it initially signals the policy wasn’t appropriately written or communicated or something like that. 

Rovner: Yeah, and I also saw some arguments that it was just a coincidence that all these portals were down, that they were literally down for maintenance, not because the funding was being frozen, that was just sort of an accidental thing. Although it seems very odd to take them down for maintenance in the first week of the administration. There’s a lot. So whatever happens with the broader order, and we still don’t really know, at HHS, there is still lots of upheaval going on even without any Senate-confirmed officials installed yet. Sarah, we talked a lot about what’s happening at NIH last week. What’s happening at the FDA? 

Karlin-Smith: So, in some ways, I think, from what I’ve heard, the FDA is like a little bit more protected. And I’m going to say it’s a relative thing, but drug approvals are still happening because drug approvals come from user fee funding. They’re still able to have meetings related to that. They’re still doing inspections of food facilities, manufacturing facilities, things like that that help keep people safe, even though there’s travel bans. The things that I’ve seen that seem most impactful and concerning at this point, besides just, I think, a lot of federal government workers are just a little bit nervous about their jobs and stability and so forth. 

Rovner: A little bit. 

Karlin-Smith: Yes. Right now as part of Trump’s diversity, equity, and inclusion executive order, which seemed to my read to be about really how those issues are handled in hiring and staffing, but it seems like it’s being applied very broadly, including at FDA. So a big thing is the FDA took down a lot of webpages and a key guidance document around increasing diversity in clinical trials. And that’s really important. And it’s important for minorities. It’s important for women. It wasn’t very long ago that we didn’t know a lot about how drugs worked in women vs. men because we didn’t include women. And it turns out that is a big difference sometimes. It’s things like that where key programs that I think are seen as scientifically important are in question over, again, an order that is not clear whether it’s supposed to impact that type of stuff. 

Rovner: Yeah, I noticed at the Finance Committee hearing for Kennedy yesterday, one of the senators asked him about clinical trials including more Native Americans, and he said, Oh yes, absolutely. And I thought: “Oh, I don’t think you’re supposed to say that right now. I think that’s all part of what the Trump administration is trying to get rid of.” But obviously, Sarah, as you said, Trump seems to be taking the tech phrase “Move fast and break things” very much to heart, basically doing whatever he wants and daring someone to stop him, which so far nobody really has except maybe that one judge. 

Another example of where this is happening is the World Health Organization, which Trump ordered the U.S. to leave as one of his Day 1 executive orders. But leaving the WHO is supposed to be a year-long process, and this year’s funding is supposed to be honored, yet already officials at the CDC have been ordered to stop all work with the WHO on things like Ebola and Marburg and mpox, as well as bird flu. That includes virtual as well as in-person work. Is anybody pushing back on these things? 

Raman: In a sense, if you looked at earlier this week when we were getting a lot of the pushback on the foreign-aid aspect and not for things like PEPFAR [the President’s Emergency Plan for AIDS Relief], we had even the WHO put out a statement critiquing the U.S. saying this is a bad idea. So even coming from them critiquing the actions that the U.S. is taking, even if the U.S. is kind of withdrawn. But I think this was one of the things that we kind of saw coming a lot more than some of the others, just because in the latter half of the first Trump administration there was gaining animosity towards WHO and just different things there. You could see it in Congress. It was not unexpected for them to want to amp up calls for that. 

Rovner: But my bigger question is, just throwing away some of the things that Congress has said that, Yes, if you want to pull out of the WHO, here’s how you do it, and he’s like, Nope, we’re just doing it. 

Karlin-Smith: Well, I think, and there’s sort of technicalities in how they wrote the order, but Congress does have to actually approve that or at least sign off on that. But in terms of pushback, I guess I think the sentiment I’ve seen from people is: Where are Democrats? Why are they not making a big deal about some of this stuff? Because it is so unprecedented. This is not a kind of what you typically expect in a transition. Which obviously, again, right? We transitioned from a Democratic to Republican president. There are differences in policy ideas and so forth, and they’re putting their people in charge. You sometimes maybe expect a little bit of changes, even certain types of pauses. But the scope and the potential harm and even questionable legality of some of this is different. And Democrats have been fairly quiet, and I think people are looking for that, like, Well, how do we react? And if you don’t have the leadership reacting and helping guide you, then you end up in a kind of quiet space. 

Rovner: I feel like Democrats were trying to, and they said this, that, We don’t want to be like the last Trump administration, where they reacted to every little thing. But now there seems to be the, Why are they not reacting at all? 

So I’m going to add another thing to this along some of these same lines. Trump late Friday night fired about a dozen and a half inspectors general from most of the executive departments, including several he himself had installed. Included in that group was a Health and Human Services inspector general, Christi Grimm, a career employee who had been in the IG’s office since 1999 and was in fact the acting IG during the last year of Trump’s first term in 2020. These firings of what are supposed to be nonpartisan fraud and abuse watchdogs are irregular, shall we say, because Congress passed a law requiring that a president give Congress 30 days’ notice of any IG firing and to state a cause, neither of which has happened. In fact, the Agriculture Department’s IG, Phyllis Fong, was marched out of her office after refusing to leave quietly, pointing out her termination did not follow protocol, which it did not. Is this Trump thumbing his nose at Congress or just trying to do so much so fast that nobody has time to react? 

Raman: To me, I think it’s trying to do so much so fast that people don’t have to react. Because even if you think of the HHS inspector general, what does the HHS inspector general do? A lot of oversight on Medicare and Medicaid to reduce fraud there. And that is such a big, I think, talking point for Republicans, every year in Congress, just, what are different guardrails we can add to reduce fraud. That is such a big thing for them. And to just strip that without having something else set up, it doesn’t seem in line with — I mean, I don’t know. I think that it really is part of the causing chaos. 

Rovner: Yeah. 

Karlin-Smith: I think I read last night they usually recover something in the not quite $10 billion a year or something like that. So that’s a lot of money. And we think of, again, a party, and Trump in particular, has been really focused on creating a more efficient government and reducing waste, particularly in HHS, where the primary role I think of the OIG [Office of Inspector General] and where they spend most of their time is recovering money that wasn’t properly spent. It doesn’t seem to line up with their political positions and views, and it’s just creating a lot of concern in spaces about that he’s sort of pushing the limits of the law to put his people in charge. 

Rovner: Right, because he wouldn’t want an IG who’s nonpartisan to call out fraud and waste and potential corruption from people within HHS, which is part of what the IG’s job is in all of these departments, not just HHS. So we’re going to have to watch how that plays out. Well, one thing that is pretty common to see early in a new administration is lots of executive orders, because the departments haven’t been fully staffed up yet. A lot of those executive orders this week have been aimed at transgender people. Executive orders directed an end to trans people serving in the military, seek to bar doctors from treating minors even with reversible treatments like puberty blockers, and threatened to pull federal funding from schools where teachers call students by their preferred names. Is it just me or does this feel pretty far-reaching? 

Raman: I think what part of this is, we’ve seen them kind of messaging on this issue for a while. This has been a big social issue that has been brought up. So I wouldn’t say that it is surprising that this comes up now. I think it’s part of that flood. We’re not used to having Monday, the executive order, Tuesday and Wednesday that are so broad in scope. And I think that is part of it, that it’s hard to go through it all and kind of see what are the ramifications that this could all have. I would say that the one Tuesday, the one that’s health-based, is pretty broad in that we’re seeing things that we haven’t really seen before, just because I think a lot of the expansions of gender-affirming care on the state level have been happening within the last four years, so there hasn’t really been an opportunity for if they were able to do that. 

But I think the thing that kind of sticks out is that with a lot of the trans health stuff geared at children, the age is not necessarily 18. The executive order is 19 and below, and it’s sometimes older than that in some of the states. But I think for something that’s national and just kind of what, all the rulemaking that he’s directing to not cover gender-affirming care for youth under Tricare, and just changing the provisions in the Postal Service and federal employee plans, it’s pretty wide-ranging. And I think the part that I would definitely be most curious about are the things related to the Justice Department and what they can enforce on other states, just because we do have states that have pretty progressive policies for gender-affirming care, and that folks that live in more restrictive states have kind of moved there to be able to access that for their kids, and just what they’ll be able to do on that level to tamp down on that. I think that will be a big thing to watch. 

Rovner: Well, moving on to reproductive health. Last week at this time, we were talking about how the first flurry of executive actions did not include anything about abortion. The anniversary of Roe v. Wade came and went on Wednesday, and the annual March for Life by anti-abortion forces came and went with both the president and the vice president speaking on Friday, and still nothing. And then Friday night, Trump issued the orders we’d been kind of expecting all along since Monday. Sandhya, this was kind of a return to Republican administrations past, right? 

Raman: Yeah. So he reinstated the Mexico City policy, which we’ve had every Republican administration since [President Ronald] Reagan, and it restricts the funding that we can give to foreign organizations that even if they with their other funds do anything in the abortion realms. Similar to what we’ve done with Title X in the U.S. but for foreign aid. And then I think another important piece is they in a separate document rejoined us into this document known as the Geneva Consensus Declaration, where countries kind of pledge that they’re going to be against abortion and advance women and children’s health efforts. And I think those things were pretty expected. I wasn’t expecting it to come that much later after the March for Life rather than kind of timed with that. And then the other important thing was that he rescinded two of the executive orders under [President Joe] Biden to be more in line with Hyde-level restrictions, so not using federal funding for abortion in most circumstances. 

Rovner: So then on Monday we saw things go even a little bit further. Acting Health and Human Services Secretary Dorothy Fink put out a document that looked pretty routine, except it quietly said that not only could HHS programs not pay for abortion, which they haven’t been able to because of the Hyde Amendment, but also that they could not, quote, “promote” abortion, which has been interpreted to mean talk about the procedure in anything except the most negative terms. Now, this is a big change. For decades, the Hyde Amendment that bars funding coexisted side by side with a requirement in the Title X family planning program that women with unintended pregnancies be counseled on all their options, including abortion, and be referred for abortion if they ask. This is most definitely not current law, but I guess if you’ve been following the rest of this week’s theme, that seems not to matter to this administration, right? 

Raman: Yeah. And I think also, within that same statement, she kind of said they were going to reevaluate their guidance about conscience and religious protections within the Office of Civil Rights. And that also kind of brought me back to we had a lot of rulemaking in Trump 1 related to that. And I think some of those were more directly related to abortion, gender-affirming care, things like that within that umbrella. So I would expect more on that front to also kind of come back. But yeah, I think this is another one where it’s another step more, another step more. 

Rovner: Another flood the zone and dare everybody to keep up with it. All right, one final thing this week, one of the big administration priorities we haven’t talked about is immigration. And yes, immigration is a health care issue. One of the changes the Trump administration is making is allowing ICE [Immigration and Customs Enforcement] officers to raid hospitals and other health care facilities. The reason that’s always been taboo is that you don’t want people with potentially contagious diseases to shy away from seeking medical care because they’re afraid of encountering immigration authorities, and then they end up spreading those diseases far and wide instead. Are we just going to have to learn this lesson the hard way again? 

Karlin-Smith: It seems potentially likely, and it’s at a concerning time with bird flu, avian flu circulating, and a lot of farmworkers in this country being immigrants and migrants who may or may not have legal status officially, because we need to know to actively protect everybody and figure out where the disease is spreading, what we need to do in reaction to that and keep everybody safe. We need to know if people have bird flu or don’t have bird flu. And so you want people to be comfortable getting medical care and treatment and getting tested and not feel like they’re risking being separated from their family, their livelihood, and all of that stuff. 

The other thing I thought, again, some of the rhetoric that’s used around this is sort of people are taking services from Americans and they’re not giving anything in return, and a lot of these people contribute to our tax system and stuff and don’t actually get any benefits back from that. So again, I think some of the logic around that. But it’s certainly been interesting to see hospitals figure out how they can deal with this or what they need to do to train their staff to kind of protect their patients and figure out how they comply with these policies. 

Rovner: And encourage sick people to come forward and get medical care. All right, well, that’s as much news as we have time for this week. Now we will play my interview with Nick Bagley, and then we will come back and do our extra credits. 

I am so pleased to welcome to the podcast Nicholas Bagley, the Thomas G. Long professor of law at the University of Michigan Law School. In addition to being an expert on all things health-law-related, in his day job Nick teaches administrative law. So I’ve asked him here to give us a refresher on how the federal regulatory process is supposed to work. Nick, thank you so much for joining us. 

Nicholas Bagley: I am thrilled to be here, and go blue. 

Rovner: Before we get to our main topic, this administration is off to a bit of a different start, if I can call it that, in terms of go fast and break things. Just how different has the start of this Trump administration been? 

Bagley: Well, in one respect, I think it’s pretty different. They’re coming out, rhetorically at least, extremely strong in a whole flurry of executive orders that say that they’re going to make enormous changes to the regulatory state. They’ve promoted this “Department of Governmental Efficiency” that Elon Musk heads. They’re making lots of claims that they’re going to cut back on all the red tape that makes it hard for Americans to get stuff done. So in that sense, it is a little bit different, a kind of shock-and-awe offensive. 

But when you drill down to details, there’s a little less there than meets the eye. So an executive order, they sound really fancy, but they’re really just gussied-up internal memoranda telling one of your subordinates to do something. And so they make big promises, and then when you drill down to the details they say, And follow through as practicable and consistent with law and make sure you take your time and talk to all the relevant stakeholders, etc., etc., etc. And so for a lot of the initiatives, we’re still waiting on details, and that’s very consistent with past administrations, because it takes a long time to make big regulatory changes. 

Rovner: So at her first briefing earlier this week, presidential press secretary Karoline Leavitt said that Trump had already repealed a number of President Biden’s regulations, and reporters I have seen use similar language. But that hasn’t really happened yet, right? 

Bagley: It hasn’t happened. And I’ve spent a lot of time trying to get across just how little these executive orders do on their own. They’re important in that they set a tone, they offer instructions, they tell us about where the president would like to go, and his subordinates will take that seriously. But the president can’t undo a regulation just by waving his pen around. There’s a process, and that process takes time. 

Rovner: What’s the difference between congressional power and executive power? I mean, President Trump seems to think that he can pretty much do anything he wants with the executive branch. That’s not really the case, right? 

Bagley: No, it’s a big misunderstanding. The executive branch is really dependent for all of its authority and all of its funding on Congress. The core of Article 2 power under the U.S. Constitution says that the president “shall take Care” that the laws are faithfully executed. That’s the president’s responsibility. And if he hasn’t been given power by Congress, he has precious few powers on his own. There’s really not much conferred in the Constitution itself. So all of the president’s awesome powers, they derive from laws that Congress can adopt and that Congress can amend and that Congress can repeal. And so this claim that he’s going to go it alone is really a claim that he’s going to work with the statutes that are on the books. And some of those statutes give him a lot of authority, and he’s going to have a lot of room to run. And others of those statutes are going to constrain him quite a bit. And we’ve seen his claims about what he wants to do, and now we’re going to have to test how much he’s going to be allowed to do. 

Rovner: Can you talk very broadly about what power the president has through rulemaking authority and what he, at least in theory, can’t do? 

Bagley: Yeah. When an agency moves to adopt a rule, a rule is something that says to the regulated community, these are the kinds of things you have to do in order to continue an operation. So if you’re a power plant, you’ve got to install this scrubber. If you’re a meat processing facility, you’ve got to abide by these safety regulations. And on and on and on. When agencies adopt those rules, there’s a law that requires them to work through a pretty intensive process. So what they’ve got to do is they’ve got to offer notice about the rule that they’re thinking of adopting. They’ve got to allow the public to comment on that rule. And then the agency has got to respond in detail to all of those comments. 

And that’s a process. It doesn’t sound that intensive, but it takes usually in the order of somewhere between one and three years to get a regulation through that process. And you can do it quicker if you really have to, but of course that takes some resources, too. So when President Trump’s press secretary says he’s gotten rid of a bunch of regulations, she’s just misstating the law. That’s not true. Now, the processes will start and many of those rules will eventually be undone, but it will take time. 

Rovner: And the same thing in terms of his doing rules. These are all about, what can he do as compared to Congress? He can’t just make up rules, right? 

Bagley: Yeah, he can’t just make up rules. There are a bunch of really important legislative constraints that are easy to forget about. The first one, and really the most important one, is the appropriations power. He can’t mint money. But the second is when he exercises power, he’s got to abide by the rules that Congress has laid out on how he exercises that power. And it turns out that Congress has never been comfortable telling the president, Go be the lord of the manner in this particular space and just rule by decree. Congress says: There’s got to be a process to make sure that all stakeholders are heard and to make sure that we get these right. And if you don’t go through the requisite process, we’ve told the courts to come in and stop you. 

And sometimes President Trump assumes that because the judiciary leans to the right, they’re going to be passive when it comes to his abuses of regulatory power, and I think is misreading how the courts think about this problem. In the first Trump administration, we saw a lot of Republican judges push back hard on sloppy regulatory choices, and I expect to see the same pattern emerge here. 

Rovner: So where do things like guidance and executive orders fit into this? He’s got power there, but not as much power as he does through the regulatory process, right? 

Bagley: That’s exactly right. So when you adopt a rule, that rule has what they call the “force of law.” It’s basically like a law even though it’s adopted by the executive branch. And that means that if you violate the rule, you can be punished for violating the rule. When you’re talking about executive orders or guidance documents, they’re kind of easy come, easy go. You can adopt them with a stroke of a pen, but they can’t actually create any new binding legal obligations. So for example, a guidance document, might hear about these sometimes, they’re just telling the world how the agency thinks about a particular rule or a particular law. It says, This is how we understand what this rule or what this law means. But that’s not binding on the courts. It’s not binding on adjudicators. It’s just the agency’s opinion. And because it’s just the agency’s opinion, it doesn’t carry that kind of weight. So if you really want to make big regulatory changes, there’s really no substitute to going through the full dress process. 

Rovner: So to add one more level of confusion to this, last year there was a very important Supreme Court case that we talked about a lot on the podcast that threw out a 40-year-old precedent known as Chevron deference that basically instructed judges to trust the expertise of federal agencies, at least in most cases. Will the elimination of Chevron make it easier or harder for the Trump administration to carry out its agenda through the regulatory process? 

Bagley: Yeah. Well, if you ask the Trump administration, they think this is great. They think it’s going to make their job easier because the United States Supreme Court is clipping the wings of these left-leaning agencies that are imposing rules willy-nilly. But actually, the truth is that losing Chevron deference is a real blow to the Trump administration’s priorities. And the reason is really simple. Chevron doctrine gave the executive branch flexibility in how it interpreted statutes. It allowed them to interpret those statutes kind of how they thought best, so long as what they offered was a reasonable interpretation. But now the courts are going to get to decide what the statutes mean. And if the Trump administration likes a particular interpretation, and the courts say, That’s not the best reading of the statute. We think the best reading of the statute is a different one, the Trump administration might have won under Chevron, but it’s going to lose under Loper Bright. And so I think they’re going to find themselves handcuffed to a much greater extent than I think they appreciate. 

Rovner: So basically, it’s going to cut both ways. 

Bagley: It’s going to cut both ways. These big changes to administrative law often have that effect. The Supreme Court, when it issues Loper Bright, what it’s saying is, We want the courts to be more important in this regulatory process. But the courts being more important means that the executive branch is a little less important, and that’s true for Democratic presidents and it’s true for Republican presidents. 

Rovner: We’re going to have to learn a lot more about health law in this coming four years. Nick Bagley, thank you so much. 

Bagley: Very happy to do it. Thank you. 

Rovner: OK, we are back. Now it’s time for our extra-credit segment. That’s where we each recognize a story we read this week we think you should read, too. Don’t worry if you miss it. We will put the links in our show notes on your phone or other mobile device. Sandhya, you were first to choose this week, so why don’t you go first? 

Raman: So I chose “Dozens of People Died in Arizona Sober Living Homes as State Officials Fumbled Medicaid Fraud Response,” and it’s by Mary Hudetz of ProPublica and Hannah Bassett of the Arizona Center for Investigative Reporting. So the story is about how at least 40 Native American residents in some sober living homes in Phoenix died when state Medicaid officials weren’t able to respond to the fraud scheme targeting Native Americans. And their investigation found that half of the deaths were happening when officials were ignoring the calls about the oversight issues that were getting reported. And the Medicaid agency even found that the fraud cost taxpayers up to like $2.5 billion. It’s a really sobering story. 

Rovner: Sarah. 

Karlin-Smith: So I took a look at a piece this week from CBS News, “Wind-blown bird poop may help transmit bird flu.” It’s about a possibility that Michael Osterholm talked about this week on his podcast, which is we have some reason to believe that bird flu may be spreading in bird poop, and it sort of can basically transmit in the air into a point where somebody, a human being including, may end up getting infected with bird flu and they didn’t have any direct contact with an animal or something like that. And so it raises concerns about the ability for it to spread much more differently. 

And also, he mentioned it raises concerns just for control of the virus, because of the way chickens are sort of housed. If they’re on farms and so forth, it would be very difficult to sort of refit their homes, if you will, to sort of prevent them from getting bird flu from outside wild birds. So if they can show this is happening, this would be kind of a big complication in our ability to track, control, and contain the virus, and of course, as they were talking about in this story, get the price of eggs down, which everyone’s very focused on. 

Rovner: That’s right. Well, my extra credit this week is from an independent news outlet called 404 Media. It’s called “Medical Device Company Tells Hospitals They’re No Longer Allowed to Fix Machine That Cost Six Figures” by Jason Koebler. It’s about a machine used in open-heart surgeries and a company that used to offer hospital maintenance staff certification classes to teach workers how to maintain and repair the machines. But now the company has decided instead to require those hospitals to purchase maintenance contracts. Hospitals are now considering not only that it’s going to cost them more but that they may have to wait longer for an authorized repair person rather than rely on their own personnel. This is part of the broader right-to-repair debate, except this one could have life-or-death consequences. 

OK, that’s this week’s show. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. We’d appreciate it if you left us a review. That helps other people find us, too. Thanks as always to our ace producer and editor, Francis Ying, also to our editor, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at whatthehealth@kff.org, or you can still find me at X, @jrovner, and increasingly at Bluesky, @julierovner. Where are you guys these days? 

Karlin-Smith: I’m mostly at Bluesky at @sarahkarlin-smith but still hanging around X a little bit and trying to post on LinkedIn, too. 

Rovner: Sandhya? 

Raman: On Bluesky and on X, @SandhyaWrites. 

Rovner: We will be back in your feed next week. Until then, be healthy.