Before I launch into the main event—my case against Joe Biden’s nominee for secretary of Health and Human Services, California attorney general Xavier Becerra—it’s worth sparing a moment to discuss important developments in the Texas attorney general’s Supreme Court case against the states of Georgia, Michigan, Pennsylvania, and Wisconsin.
I went over the rather glaring factual and legal problems with the case in my newsletter Wednesday. Rather than explain them again in detail today, I’ll sum up the basic deficiencies: Texas doesn’t have standing, Texas’s factual claims are almost laughably incoherent, its legal claims have been repeatedly rejected by previous courts, and there is no legal foundation for the remedy they seek.
The president, of course, endorsed it immediately.
And now 17 state attorneys general and 106 Republican members of Congress have filed amicus briefs in support of Texas’s frivolous case. This is dangerous, irresponsible behavior. Most (but not all) of the signatories know the case has no chance. They also know that by filing an amicus brief, they’re communicating exactly the opposite message to their constituents.
Many of them also know that if the Supreme Court did rule in their favor, it would likely break this country. In fact, many of their own states (including Texas) made election changes to accommodate the pandemic that would be unlawful under the logic of their argument. Similar lawsuits would gut the entire election, generate massive chaos, and surely lead to political violence and calls for separation and secession.
Making a lawless Supreme Court argument in the effort to create such a crisis is one of the most breathtakingly irresponsible (and outright malicious) public acts I’ve ever seen in my life.
When I wrote my book, I intended to warn that our political climate was becoming so toxic that future politicians would be so reckless as to seek to break America. I did not believe 18 state attorneys general, and 106 members of Congress, would court the worst constitutional crisis since 1860 to keep Donald Trump in power. Donald. Trump. It’s astonishing and heartbreaking. If you want more details about this case, including a close look at the legal arguments, please listen to our most recent Advisory Opinions podcast. It’s lit, as the kids say.
And now, Xavier Becerra …
If I had to sum up my objection to Becerra in a single sentence, it would be this: He’s a punitive progressive culture warrior. I realize that Biden is pro-choice and will pick a pro-choice HHS secretary. But the man he picked has a pattern and practice of pushing progressive cultural causes beyond the constitutional red line.
Specifically, Becerra zealously defended a California law that forced pro-life pregnancy centers to advertise for free and low-cost abortions. He defied the current HHS Office of Civil Rights to attempt to force churches to provide abortion coverage. He selectively and aggressively prosecuted an undercover pro-life activist, and he litigated against the Little Sisters of the Poor as part of a continuing effort to coerce religious institutions into violating their consciences to facilitate contraceptive coverage.
Let’s take a closer look at each of these incidents.
In June 2018 the Supreme Court struck down a California law that required pro-life pregnancy centers to provide notices that California offers subsidized abortion services. In his argument, Becerra sought to create a separate category of speech—called “professional speech”—subject to lesser First Amendment protection so long as the profession required a license. As Justice Thomas noted in his majority opinion, Becerra’s proposed doctrine would grant the state “unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.”
Becerra may defend himself by stating that he was merely arguing California’s position, not his own. But senators should ask if he agrees with the state law and agrees that crisis pregnancy centers should enjoy more limited rights to free speech.
But that’s not the complete case against Becerra. Far from it. In January the Office of Civil Rights issued a Notice of Violation against California for breaching the so-called Weldon Amendment by mandating that churches (yes, churches) provide abortion coverage:
OCR has completed the investigation of the complaints and determined that California violated the Weldon Amendment by mandating that California health care plan issuers cover elective abortion in each plan product, and continues to violate federal law by continuing to require objecting health care entities protected by the Weldon Amendment to cover elective abortion. With this Notice, OCR requests that California inform OCR, within thirty days, whether California will continue to enforce its requirement that all health plans cover elective abortions, or whether it will agree to take corrective action and remedy the effect of its discriminatory conduct.
In response, Becerra and California Governor Gavin Newsom issued a joint statement defying the OCR and stating that “California has the sovereign right to protect women’s reproductive rights.” But California can’t override the First Amendment. Does Becerra believe that Roe and Casey trump explicit constitutional protections for the free exercise of religion? If so, he has no business in Joe Biden’s cabinet.
Becerra’s punitive progressivism extends even into his criminal prosecutions. In 2017 he brought felony charges against pro-life activists David Daleiden and Sandra Merritt. Daleiden and Merritt had famously recorded a number of undercover videos showing Planned Parenthood officials discussing, among other things, harvesting and possibly even selling the organs of aborted babies. The heart of the indictment (14 of the 15 counts) was the claim that Daleiden and Merritt wrongly recorded alleged “confidential communications” between complete strangers at public conferences and at public restaurants.
As I wrote at the time, the case reeked of selective prosecution. Why? Because Daleiden’s videos were hardly the only undercover videos in recent California history, and the response was very different, depending on the target:
There is no shortage of examples of concealed-camera videos in California exposing scandalous behavior … often in the arena of animal rights. In 2014, a group called Mercy for Animals released an undercover video that “allegedly show[ed] widespread animal abuse and cruelty at one of California’s largest duck farms.” Authorities reportedly responded to the video — by investigating the farm.
In 2015, the same group released yet another undercover video, this time exposing “apparent mistreatment of chickens at a Foster Farms poultry slaughterhouse in Fresno and at three poultry farms in Fresno County.” Once again, authorities responded — once again by investigating the farm.
We should all condemn animal cruelty, but the fate of chickens and ducks concerns me less than the fate of babies in the womb.
In fact, conservatives weren’t alone in criticizing the case. The editorial board of the L.A. Times agreed Becerra’s prosecution was problematic:
It’s disturbingly aggressive for Becerra to apply this criminal statute to people who were trying to influence a contested issue of public policy, regardless of how sound or popular that policy may be.
More:
In similar cases, we have denounced moves to criminalize such behavior, especially in the case of animal welfare investigators who have gone undercover at slaughterhouses and other agricultural businesses to secretly record horrific and illegal abuses of animals. That work, too, is aimed at revealing wrongdoing and changing public policy.
Becerra also brought suit to overturn Trump administration religious exemptions from Obamacare’s contraceptive mandate. Becerra litigated against the Little Sisters of the Poor in a continuation of one of the most notorious culture war conflicts of the Obama administration.
Is there really a compelling governmental interest in making sure that nuns facilitate access to contraceptives?
Biden has indicated that he wants to reach out to conservatives. This is a welcome gesture, but Becerra’s nomination undermines that message. Again, it’s entirely expected for Biden to nominate a pro-choice HHS secretary. Biden is pro-choice, and Biden won.
But it’s one thing to be pro-choice. It’s another thing entirely to force churches to cover abortions, to force pro-life pregnancy centers to advertise for abortion, to selectively prosecute pro-life activists, and to try to force nuns to violate their conscience in the effort to provide contraceptives to their employees.
At a volatile time in our nation’s history, America does not need a vitally important cabinet member to push up to and past the statutory and constitutional red line in suppressing free speech and religious freedom and in supporting abortion rights. Becerra is a bad choice.
One last thing …
Sigh. As life in these United States grows more tense, I’m increasingly excited about SpaceX and our new Martian future. Come quickly Martian Congressional Republic! But before we can colonize Mars we actually have to fly to Mars, and this week SpaceX launched a high-altitude test of its so-called Starship vehicle—a key component of its planned Mars mission.
How did it go? Let’s call it two steps forward, one step back. Observe:
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