Becerra BS: I've never sued any nuns, you know

Technically — true. Morally — well. Xavier Becerra attempted to get past the issue of religious exemptions and the Little Sisters of the Poor by claiming to have never sued them, which is accurate only in the narrowest sense:

It’s true that Becerra never sued the Little Sisters of the Poor. It’s also true that Becerra sued the Trump administration to force an end to the policy that allowed the nuns to claim an exemption from the contraception coverage in ObamaCare. As National Review’s Rich Lowry points out, the lawsuit was not just strangely out of Becerra’s jurisdiction, it looked vengeful all along:

How radical is his litigation? Let’s count the ways.

First, Becerra sued after the nuns had already been through the wringer and promised, a little like the groundhog seeing his shadow, several more years of litigation.

Second, the HHS exemption has nothing to do with California. Obamacare isn’t a California law, and HHS isn’t a California agency. There is no harm to California if the federal government decides it must provide an exemption to the nuns. Indeed, it is probably unprecedented for one sovereign jurisdiction to sue to prevent another sovereign jurisdiction from changing its own rules to protect religious liberty. In a word, this is crazy.

Third, what Becerra seeks is a crushing burden on the nuns. If they don’t sign onto an arrangement that they believe violates their faith, Becerra wants them, in keeping with the Obama mandate, to be subject to daily fines that would add up to tens of millions of dollars annually. And, remember, these aren’t “corporate polluters,” they aren’t insider traders, they aren’t tech giants; they are an order of nuns founded by a saint who begged in the streets of 18th-century France so she could carry out her charitable work.

Fourth, his suit lacks all merit. There was no reason to think that a mandate created by an executive agency also couldn’t have a carveout created by an executive agency. Plus, there was never any plausible claim of any harm — Becerra has not found one alleged victim, not one actual woman, who has been prevented from obtaining contraception because of the religious beliefs of the Little Sisters.

CNA’s Matt Hadro points out that Becerra fought Catholic nuns in court over abortion, too:

In another case involving Becerra and nuns, a group of Catholic nuns was affected by the state’s universal abortion coverage mandate. They did not fight the mandate in court, but did file a complaint with the civil rights office at the Department of Health and Human Services (HHS). The Missionary Guadalupanas of the Holy Spirit alleged that their religious freedom was being violated by having to provide abortion coverage in health plans.

The HHS office in Jan., 2020 ultimately found that Becerra violated federal conscience laws, and gave him 30 days to comply with the law. Becerra refused, and in December the agency announced it would withhold $200 million in Medicaid funds to California.

Did Becerra sue nuns in either instance? No, but he certainly tried to force them into funding contraception and abortion despite their obvious religious objections to both. And it’s worth noting that an HHS under Becerra would strip the nuns of one venue that actually defended them against Becerra as California’s attorney general. That makes this answer from Becerra deceptive at best, and an outright lie in the context of his recognition of religious liberty. Or, as our new president might say, it’s malarkey.

With that said, it’s still not clear that anything will damage Becerra’s march to confirmation. As of this moment, no Senate Democrat has peeled off to oppose him, although no Senate Republican has offered support yet either. It’s not beyond belief that pro-choice Republicans Susan Collins and Lisa Murkowski might vote to confirm Becerra, but they might have some reservations over his lack of experience in health-care management too. If Becerra can hold all 50 Senate Democrats, however, it won’t matter; Kamala Harris will come on to issue the tie-breaking vote.

All eyes will turn to Joe Manchin now. He might intervene if Senate Republicans hold fast (why cross the aisle if it won’t stop the confirmation?), but Manchin might have made his bipartisan/comity point with Neera Tanden. As of a couple of days ago, Manchin played coy. He’ll have to make up his mind soon, but Becerra may have avoided forcing Manchin’s hand by avoiding any unrecoverable stumbles. On the whole, Republicans and conservatives might have preferred to trade Tanden for Becerra, but losing control of the White House and Senate means you don’t get to make those kinds of trades.

David Strom 6:41 PM on September 26, 2022
David Strom 4:41 PM on September 26, 2022