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Xavier Becerra

The Fifth Circuit Obamacare hearing

Remember, the Fifth Circuit is where hope goes to die. Adjust your expectations accordingly.

It’s constitutional – deal with it

On the left was Judge Carolyn Dineen King, an appointee of Jimmy Carter; on the right sat Judge Kurt Engelhardt, a nominee of Donald Trump, and in the center sat Judge Jennifer Walker Elrod, the George W. Bush appointee expected to represent the critical swing vote on a three-judge panel now charged with deciding the constitutionality of the Affordable Care Act.

It was that perhaps fitting seating arrangement that greeted attorneys for Texas on Tuesday afternoon, as the state and its allies asked this three-judge panel on the U.S. 5th Circuit Court of Appeals to strike down the sweeping health law known as “Obamacare,” a legal means to a political end that has eluded conservatives for the better part of a decade.

Texas won a major victory in its bid to end the law in December, when a federal district judge in North Texas sided with the state, declaring that the law is unconstitutional in its entirety after Congress in 2017 gutted one of its important provisions, a tax penalty for individuals who chose to remain uninsured. The U.S. Department of Justice, in a highly unusual move, has declined to defend the law.

A California-led coalition of blue states that has stepped in to oppose Texas in the lawsuit quibbles with that question of “severability,” arguing that even if one slice of the law must fall as unconstitutional, its other hundreds of provisions — including a host of popular patient protections — should stand. The question of how much of the law may rightly be salvaged was a focal point of court discussions on Tuesday.

Texas’ odds of total vindication remain in question after nearly two hours of questions before the three judges.

Most of the unusually-large courtroom audience of journalists and interested but unaffiliated attorneys focused on Elrod at the center. By far the most vocal judge of the three, Elrod probed both sides on the issue of standing — whether they have the right to participate in the lawsuit at all. And she seemed highly focused on her court’s options for ordering a remedy, seeming to weigh options for sending the case back to a lower court for further consideration.

Engelhardt, who is among the newest appointees to the court, was harsh and occasionally sarcastic, asking more questions of the blue state coalition than he did of the Texas-led team. He seemed skeptical of the standing of both the California-led coalition and the Democratic-majority U.S. House of Representatives, which intervened in the case although the Republican-majority U.S. Senate did not.

The Senate, Engelhardt remarked, “is sort of the 800 lb. gorilla that’s not in the room.”

King, meanwhile, did not speak at all.

See here and here for the background. The legal basis of this lawsuit is so ridiculous that anything short of tossing it and its lawyers out of court is insufficient, but given where we are I could find a way to live with the idea of sending it back to the idiot district court judge for reconsideration. I fear we’ll get some kind of split-the-baby decision that strikes down parts of the law but leaves some crippled skeleton of it intact, which dumbass pundits will then call a “moderate compromise”, in the same way that the midpoint between “I murder you and burn down your house” and “I leave you alone” is a moderate compromise. Not much to do at this point but wait and work your ass off voting these morons out in 2020. NBC News, CNN, Daily Kos, Mother Jones, and Think Progress have more.

The lawsuit to kill Obamacare has its hearing at the Fifth Circuit today

Brace yourselves.

It’s constitutional – deal with it

Last year, after a federal judge in Texas declared the entirety of the Affordable Care Act unconstitutional, throwing into question millions of Americans’ health coverage, the state’s Republican leaders promised they would come up with a plan to replace it.

But on Tuesday, after a legislative session that seemed to have no room for issues other than property tax reform and school finance, Texas will ask a federal appeals court in New Orleans to end the law in its entirety — without offering a replacement plan.

The conservative crusade against portions of the act, known as Obamacare, has spanned a decade. But Texas’ latest lawsuit, filed in February 2018, became an existential threat to the law after U.S. District Judge Reed O’Connor ruled in December that it is unconstitutional in its entirety. At stake: the subsidized health coverage of roughly 1 million Texans, sweeping protections for patients with preexisting conditions, young adults staying on their parents’ insurance plans until age 26 and a host of low-cost benefits available to all people with health insurance, including those covered through their employers.

Texas already has the highest uninsured rate in the nation.

In a highly unusual — if not entirely surprising — move, the U.S. Department of Justice has declined to defend the federal law, leaving a California-led coalition of blue states to protect it. As the case proceeds, Obamacare has remained in place, and likely will until the litigation is finally resolved.

Attorneys for the state of Texas argue the health law cannot stand since the Republican-led Congress in 2017 zeroed out Obamacare’s individual mandate — a penalty imposed on people who chose to remain uninsured. Democrats had favored the penalty as a way to induce more people to purchase health insurance, with the goal of reaching near-universal coverage. Without it, Texas argues, the whole law must fall.

But the state’s Republican leaders have offered few ideas about what should replace Obamacare, a law that touches practically every aspect of health care regulations and includes several popular protections for patients. Gov. Greg Abbott — a vocal critic of the law — pledged in December that if the law remained struck down on appeal, “Texas will be ready with replacement health care insurance that includes coverage for pre-existing conditions.”

Since then, he’s been quiet on the issue, including during this year’s 140-day Texas legislative session. Abbott did not respond to questions for this story.

See here for the background. And of course Greg Abbott doesn’t have a single thing to say about reducing the extremely high uninsured rate in Texas. That’s because Abbott’s plan to reduce the uninsured in Texas, supported by Dan Patrick and Ken Paxton and the rest of the Republicans, is for more of them to die. Just as a reminder, Republicans have been in complete control of Texas government since 2003. Not once during that time have they taken any steps to improve access to health care in the state. Indeed, on multiple occasions, beginning in 2003 with the savage cuts to CHIP and continuing through their assault on women’s health via attacks on Planned Parenthood, they have time and time again make accessing health care harder. That’s what is at stake here. The only fix, regardless of the ruling in this case, is to vote them out. The WaPo, the Chron, and Think Progress have more.

Anti-Obamacare ruling appealed

The big non-Mueller story to follow for 2019.

Best mugshot ever

The Democratic coalition of states battling Texas over the fate of the Affordable Care Act has formally begun the process of challenging a Dec. 14 decision ruling the law unconstitutional in its entirety.

California Attorney General Xavier Becerra, who’s leading the charge, filed a notice of appeal Thursday morning before the U.S. 5th Circuit Court of Appeals. The blue states will ask the federal appeals court to overturn last month’s ruling from U.S. District Judge Reed O’Connor, who declared that President Barack Obama’s signature health care law is unconstitutional after Congress in December 2017 gutted one of its major provisions, the individual mandate.

The notice of appeal marks the next stage of what is expected to be a long-running litigation process that could reach the U.S. Supreme Court. A Texas-led coalition of 20 states kicked the process off nearly a year ago by suing the federal government to kill the law; after the Justice Department sided partially with Texas, the California-led coalition of states stepped in to defend Obamacare in court.

“The wheels start turning as of now,” Becerra said on a press call Thursday morning.

See here and here for the background. Every legal scholar with a shred of integrity has denounced this ruling as ridiculous, but we all know that what matters is what five members of SCOTUS think is legal. One story I read about this noted that the coalition of states defending Obamacare picked up an ally after the 2018 election, the new Attorney General of Colorado. One can only wonder what might be happening today if we could have added a new Attorney General of Texas to this. Alas, we’ll have to file that under What Might Have Been.

Video fraudsters in trouble again

In California this time.

Right there with them

California prosecutors on Tuesday charged two anti-abortion activists who made undercover videos of themselves trying to buy fetal tissue from Planned Parenthood with 15 felonies, saying they invaded the privacy of medical providers by filming without consent.

The charges against David Daleiden and Sandra Merritt of the Center for Medical Progress come eight months after similar charges were dropped in Texas.

State Attorney General Xavier Becerra, a longtime Congressional Democrat who took over the investigation in January, said in a statement that the state “will not tolerate the criminal recording of conversations.”

Prosecutors say Daleiden, of Davis, California, and Merritt, of San Jose, filmed 14 people without permission between October 2013 and July 2015 in Los Angeles, San Francisco and El Dorado counties. One felony count was filed for each person. The 15th was for criminal conspiracy to invade privacy.

[…]

Daleiden and Merritt had previously been indicted in Texas on similar charges in January of 2016, but all of the charges were eventually dropped by July as prosecutors said a grand jury had overstepped its authority. The grand jury had originally been convened to investigate Planned Parenthood, but after finding no wrongdoing turned around and indicted Daleiden and Merritt instead.

The California charges stem from recording people without their knowledge, which is a crime in some states but not in others. The charges here were the result of creating phony drivers licenses to back up the aliases they used. The circumstances under which the Harris County indictments were dropped remain somewhat fishy, but I suppose it was just a matter of time before these two clowns got into trouble again. It’s what happens when everything you do is based on a lie. Think Progress, the Current, and Slate’s Mark Joseph Stern, who has a thorough and nuanced look at the California law in question, have more.

California is the new Texas

Or will be, as far as litigating against the federal government goes.

Xavier Becerra

Xavier Becerra

Gov. Jerry Brown has tabbed Rep. Xavier Becerra to serve as California’s interim attorney general, selecting the Los Angeles Democrat to fill a vacancy opened by the imminent departure of outgoing Attorney General Kamala Harris to the U.S. Senate.

Assuming he wins confirmation by the Legislature – a strong possibility, given the 12-term Democrat’s role as a mainstay of Democratic and Los Angeles politics – Becerra would serve as California’s top law enforcement official through 2018, with an opportunity to serve for another eight years if he runs for the office. He would be California’s first Latino attorney general.

The election of Donald Trump as president has alarmed California Democrats and thrown into question the state’s liberal stances on issues like climate change and immigration. Brown’s choice of a liberal stalwart like Becerra reaffirmed the state’s future role as a pocket of resistance.

“Xavier has been an outstanding public servant – in the State Legislature, the U.S. Congress and as a deputy attorney general,” Brown said in an emailed statement. “I’m confident he will be a champion for all Californians and help our state aggressively combat climate change.”

Referring to himself as “the son of immigrants” who is motivated to “fight for working families like the one I grew up in,” Becerra said in a statement that he had accepted Brown’s offer and summarized his liberal bona fides.

“I have been part of some of the greatest debates confronting our nation, from opposing the Iraq War, to fighting to help Americans recover from the Great Recession, to launching the bipartisan immigration talks and helping write our nation’s health security law,” Becerra said, adding that “California right now is ahead of the country when it comes to clean energy, common sense treatment of immigrants, real health security and so much more.”

[…]

In a conference call with reporters, Becerra said he would be “vigorous in defense of what we’ve done” to expand clean energy, protect parts of the federal health care law that Republicans seek to dismantle and preserve efforts toward “criminal justice reform” that seek to protect “young men of color.”

“We have policies in place that probably won’t pass at the federal level for another five, 10, 15 years,” Becerra said. “If you want to take on a forward-leaning state that is prepared to defend its rights and interests, then come at us.”

And in the face of Trump’s vow to deport millions of immigrants with criminal records, Becerra appeared to back California’s efforts to prevent removal of unauthorized immigrants who pose no threat to public safety.

“No one who goes to a grocery store to shop should believe the state of California is going to do anything to keep them from going home to see their kids if they’re just being regular, hardworking individuals,” Becerra said. “You’re talking to the son of immigrants, and I’m going to do everything I can to give that child of immigrant parents every chance I had.”

Hire some good litigators, that’s my advice. I’ve said before, I don’t care for having district court judges provide another veto on the federal government. It just doesn’t strike me as a good way to run a government. That said, if this is how the game is played these days, I see no reason to unilaterally disarm. I look forward to the howls of protest from the likes of Ted Cruz when state or even local action overrules a federal mandate. I can’t wait to hear what the principle is for that. Daily Kos has more.

Castro back on as VP possibility

I have three things to say about this.

Mayor Julian Castro

Housing and Urban Development Secretary Julián Castro is on the shortlist of potential running mates for Hillary Clinton, and has been asked by her campaign to provide personal information, San Antonio Express-News sources have confirmed.

Citing Democratic sources, reports said that in addition to Castro, a pared-down list the Clinton campaign is considering includes Virginia Sen. Tim Kaine and Massachusetts Sen. Elizabeth Warren and that others also may yet be in the running.

[…]

Campaign insiders at the Bipartisan Policy Center recommended this spring that because of the high stakes, presidential nominees devote at least two months vetting potential running mates, which includes digging into their finances, their family history and even their social media posts.

But Clinton, who has been a fixture in Democratic politics for more than two decades, apparently feels secure in a more compressed time frame. She’s not expected to announce her choice until — or just before — Democrats gather in Philadelphia on July 25 for their nominating convention.

Castro’s chances were widely thought to have dimmed with the rise of presumptive GOP nominee Donald Trump, whose incendiary remarks about people of Mexican heritage had functioned to energize Latino voters.

Castro, who would be the first Latino on a major party ticket, may yet fall short given his lack of experience.

The Associated Press reported that supporters of Castro, 41, said he would bring other advantages, among them his relative youth alongside Clinton, 68, and some of the other potential running mates. In her challenge from Vermont Sen. Bernie Sanders, Clinton struggled to attract young voters to her cause.

U.S. Rep. Xavier Becerra of California and Labor Secretary Thomas Perez also have been mentioned on a list of Hispanic candidates who could be appealing to Clinton.

Warren, who turns 67 on June 22, is a favorite of many Sanders backers for her outspoken liberal views, particularly when it comes to regulating Wall Street. She and Clinton have not been close, but the two met recently in Washington after Clinton’s victory over Sanders became clear.

Kaine, 58, who’s known as a centrist in the party, had emerged as a favorite of some party insiders because he might appeal to independents and address another of Clinton’s weaknesses — her problem with Anglo male voters.

1. It was just a month ago that Castro himself was saying that he was not being vetted for the VP job. Things can change in a hurry, so perhaps one should not take any single story about the VP selection process with too much seriousness.

2. I agree with Brian Beutler that Hillary Clinton has the luxury of being able to pick any reasonable candidate as her VP, and I agree with Matt Yglesias that her first priority should be to pick someone whom she would like as her successor in 2024. Beyond that, I don’t really have an opinion on whom she should pick.

3. What effect might Castro have on Democratic prospects in Texas? I don’t know, but a lot of people think he would be good for Dems here. I tend to think so, too, but you know how we could try to answer that question? With some polling, of course. We finally have a poll now, but it doesn’t address that question. Perhaps another poll, assuming it happens before any VP announcements are made, could include some questions pairing Clinton with this VP hopeful or that one to see if any of them make a difference one way or another. My guess is that any such effect would be modest, but why guess? Give us a poll! Campos and the Current have more.

UPDATE: One national poll suggests Castro doesn’t move the needle much if at all in either direction. That’s not the same as seeing if he has an effect in Texas, but it is a data point.