President-Elect Biden Will Select Xavier Becerra as Secretary of HHS

Will the former California AG have to recuse from all ACA-litigation initiated by participated in?


According to reports, President-Elect Biden will select Xavier Becerra as the next Secretary of the Health and Human Services. As California Attorney General, Becerra participated in many lawsuits against the Trump Administration, including several cases involving HHS. Perhaps the most notable case is California v. Texas.

Will Becerra recuse from any case he was involved in? For example, would he have to recuse in the never-ending litigation concerning the contraception mandate? And would that recusal extend to the Biden Administration's rescission of the Trump Administration's rescission of the Obama administration's policy? Would Becerra be barred from negotiating any settlements in those cases? In many regards, Becerra's former employment may limit his ability to manage the agency. His Deputy will have a significant amount of responsibility.

There is some precedent here. In early 2017, Democratic Senators called on Scott Pruitt, the former Oklahoma Attorney General, and eventual EPA nominee, to step down from any cases he was involved with. Indeed, Pruitt ultimately recused from certain cases.

I'm certain the Senate will ask Becerra about possible recusals.

Update: In January 2018, Attorney General Becerra, and eleven other Democratic Attorneys General, called on Pruitt to recuse in a climate change rulemaking:

This letter specifically focuses on the lack of due process and fairness resulting from Administrator Scott Pruitt's prejudgment of the outcome of this rulemaking and the procedural failure of EPA to disqualify Administrator Pruitt from all aspects of this rulemaking given his closed mind.2 A new presidential administration may seek to implement different policy preferences through changes in existing regulations. But to maintain the integrity of the rulemaking process, any such changes must be made while adhering to standards intended to ensure that rulemaking processes are fair and rational. Because EPA's CPP repeal rulemaking process violates these standards, EPA must withdraw the proposed repeal.

Administrator Pruitt decided years ago that the CPP is unlawful and must be eliminated. As Oklahoma Attorney General, he attacked the CPP with detailed legal and factual criticisms. He ceaselessly worked through courts, legislatures, and the media to stop EPA from promulgating and implementing that rule, and he made himself into a prominent leader of the effort to overturn it. Even after 5:40 p.m. on February 17, 2017, the moment when he was sworn in as Administrator and transformed from EPA's rival to its leader, Administrator Pruitt's legal and media campaign against the CPP continued unabated. EPA's proposed CPP repeal would achieve through rulemaking what he failed to achieve through litigation. And it would adopt the specific interpretation of the Clean Air Act, previously rejected by EPA, that Administrator Pruitt has long advanced to restrict EPA's ability to control power plant emissions. On both this interpretation and the legality of the CPP in general, Administrator Pruitt's mind is closed.

These words will be used against Becerra soon enough.

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  1. Nothing says “we can unite” like picking ultra-partisan coastal elites for cabinet jobs. I wonder how HHS will be weaponized against middle-America.

    I will guess the first major way will be to require proof of Covid vaccination or you’ll be prohibited from employment.

    1. It all makes sense when you realize that what Democrats mean by “uniting” is them getting what they want, and everybody else knuckling under.

      1. WTF are you talking about?

    2. XKCD has a new secret map from DNC headquarters. It’s amazing how close it looks to the current maps.

    3. At which point Red America says “F*** It” and the entire economy implodes. Forget a shooting civil war, something like this is far more likely, and the coastal elites would be f***ed…

      This is not going to end well — I don’t think the left understands the extent of the Pyrrhic victory they have “won.”

      1. Dr. Ed has more violent fantasies.

    4. I will guess the first major way will be to require proof of Covid vaccination or you’ll be prohibited from employment

      That’s a new one.

      The neo-dictator will be granted emergency powers to large acclaim, and they never give them up.

    5. No ultra-partisans in Trump’s cabinet. Right, Ben?

      You remember those cabinet meetings where everyione took turns praising Dear Leader?

      1. Like who and what action did they take that you base it on?

          1. Who cares about some sleazy CNN liar’s opinion on anything?

      2. Who? What did they do?

        The most complaints are about DeVos, who is portrayed as the embodiment of Satan for protecting due process rights on campus and for making education about students learning instead of union money-grubbing. You can look forward to the end of due process and for K12 schools to be more about money with learning once again becoming an afterthought.

        Perhaps you will have a party knowing about all the children’s futures destroyed and all the (often-times minority) college students railroaded. You can just replace them with foreigners, so you can personally prosper amid the destruction and decay. Enjoy a glass of champagne.

    6. I will guess the first major way will be to require proof of Covid vaccination or you’ll be prohibited from employment.

      And when that doesn’t happen (it won’t) will you admit you were wrong? Of course not. You’ll just make up some other BS.

      1. Wrong about a guess? Why should anyone admit that they were wrong about something that is introduced as a guess about the future? I already admit it may very well be wrong. That’s implied by the word “guess”.

        1. Yeah. Wrong about a guess.

          Why should anyone admit that they were wrong about something that is introduced as a guess about the future?

          To show some integrity.

          1. Done then. Admitted it might be wrong.

  2. As long as Pruitt wasn’t a laywer involved in a court case litigating CPP, I don’t see any reason for him to recuse or have recused. Actually, even if he was such a lawyer, being head of the EPA and making policy decisions isn’t litigating a case from the other side – the only thing he should need to recuse from should be representing the EPA in court on these matters (and why would he do that as the head of EPA, anyway?).

    Rather, that someone has strong beliefs about what an agency should do is probably *why* they were nominated to head that agency. Disagreeing openly with previous agency policy isn’t disqualifying except to the degree that presidents who approve of that previous agency policy aren’t going to nominate you.

    By that same logic, you couldn’t appoint an attorney general who was vocally against the drug war, or they’d have to recuse from any setting of federal drug policy, solely because that runs counter to agency policy. Ridiculous.

    1. It may be ridiculous but it is the standard that Becerra himself advocated.

      I see nothing wrong with holding politicians to their own ridiculous standards. It’s the only thing that will make them stop making those ridiculous statements in the first place.

  3. “Will the former California AG have to recuse from all ACA-litigation initiated by participated in?”

    No, because he’s got the magic (D) behind his name, and so would ever do anything unethical. Just ask a Democrat.

    1. I can tell that you’re whining and bleating about something. But I’m not sure exactly what it is. (I get the usual, “Blah blah blah…Dems bad.”, of course. But other than that???)

  4. Why does it matter when, per the unitary executive theory so recently in favor, all power resides in the president? As long as the president is the sole repository of executive branch power, cabinet officers merely speak for him. So if Becerra steps aside, it makes no difference since the voice you hear, no matter who is speaking, will be that of President Biden.

    Or have the principled members of the Federalist Society suddenly reconceived the unitary executive as the eunuchary executive, dressed in the robes of instrumentalism?

    1. The unitary executive means that the president has ultimate authority over the executive branch, not that the president is the only person working there. No one disputes that the president can and should have subordinates (indeed, the constitution clearly contemplates as much), and it seems fair for the president to expect them to avoid conflicts of interest.

      (Which is not to say I follow Prof. Blackman’s argument as to how such a conflict would exist here.)

      1. I don’t believe that Prof Blackman is arguing that such a conflict exists here. He is merely saying that Becerra said that such a conflict exists. Either Becerra was wrong then or he’ll be conflicted out now. Neither position paints him as a good candidate for the role.

  5. the principled members of the Federalist Society

    All 13 of them.

    1. principled members of the democrat party

      All zero of them

  6. Fortunately for Becerra, the Senate decided the Executive Branch can tell Congress to fuck off.

    1. Well maybe, once they get confirmed, there is always that.

  7. In general heads of departments are supposed to be policy positions, amd policy positions are not supposed to be politically neutral.

    I think Democrats had a legitimate point that lobbyists of regulated industries might not be the most suitable regulators of those industries, just as a mob lawyer might not make the most suitable head of the FBI. The concept of “regulatory capture” – where a regulatory agency becomes an instrument of the regulated and a tool for facilitating rent seeking behavior – is a problem that cuts across traditional ideological lines. I think the situation here is different. A prospeective regulator taking policy positions is different from a prospective regulator perceived as beholden to, amd perhaps in the pocket of the regulated.

    Regulators need not be pristinely neutral. But they shouldn’t be corrupt.

    1. Nice point. I wonder if it will fly over the heads of most people here. (I hope to be proven wrong about this.)

    2. just as a mob lawyer might not make the most suitable head of the FBI

      How could it be worse?

    3. Joe Kennedy as the first head of the SEC?

    4. Regulatory capture is a feature of big government working as designed. They have to hide the corruption that is the intended core function of government from its beginning, kleptocracy, a little better here, but that’s easily covered as their buddies and families get cushy jobs, and their spouses become stock market geniuses.

      Give them a $150k job, and I will only cost your industry an additional $1.3 billion in regulatory burden this year instead of $1.5 billion. I got a whole lotta talking head useful idiots ready to rip into you at a moment’s notice.

  8. “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth. This very kindness stings with intolerable insult. To be “cured” against one’s will and cured of states which we may not regard as disease is to be put on a level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.”

    ― C.S. Lewis, God in the Dock: Essays on Theology (Making of Modern Theology)

    1. He left out the part of Toto pulling back the curtain and there’s a weasely little man there, pockets bulging with cash, the intended purpose of the economically crushing regulation.

      1. To say they do so with the approval of their own conscience is not the top leaders. It is the useful idiots slightly lower down who are the true believers. They are memeslinging tools for the corruption at the top.

  9. “These words will be used against Becerra soon enough.”

    I’d give Beccera credit if he would admit his comments were just partisan bullshit. Then the Senate can commend him for his candor, then reject his nomination on the merits.

  10. Becerra’s first order of business will be to force Nuns to provide abortions to their members.

    1. They’d have to be raped first. Will he do it himself, or provide priests?

  11. Poor Merrick Garland. Snubbed again!

  12. Assuming the EC does elect Biden (they will, barring something extraordinary), my take is the POTUS gets to pick his own team. Subject of course, to Senate confirmation. Becerra will receive the same treatment, no better and no worse, than POTUS Trump’s nominees received. Everything he ever did, everything he ever said, every relationship he ever had, every job he ever held is now fair game. It will all be vigorously and thoroughly examined in public. After all, fair is fair. The standard used to measure POTUS Trump’s nominees and the general behavior surrounding their nominations will be repeated.

    Only this time, the shoe will be on the other foot.

  13. Ooo, Becerra words will be used against him soon enough! Even sooner, since Blackman has kicked it off with this article.

    On an unrelated note: Scott Pruitt was fundamentally corrupt and was forced to resign.

  14. I have no doubt Becerra was chosen for his outstanding management of California’s pension, education, and healthcare systems and not for political reasons/sarc

  15. Becerra is the last person a true Catholic would nominate for this post.

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