The Volokh Conspiracy

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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.