It’s Joe Manchin’s Moment Will the West Virginia Democrat sink Xavier Becerra’s nomination as health secretary? by William McGurn
https://www.wsj.com/articles/its-joe-manchins-moment-11614641678?mod=opinion_lead_pos8
Will Sen. Joe Manchin nix President Biden’s choice to head the Department of Health and Human Services?
In a Senate split 50-50 along party lines, the Democrat from West Virginia already doomed Neera Tanden’s nomination as director of the Office of Management and Budget when he came out against her. Mr. Manchin’s opposition to a $15-an-hour minimum wage likewise helped force it off the Covid-19 relief bill. The question now is whether he really means to serve as a check on the Biden administration, or whether bringing down Ms. Tanden was a token act designed to buy him a pass for supporting more-extreme picks such as Xavier Becerra, the California culture warrior tapped for health secretary.
As usual Mr. Manchin isn’t saying much, beyond a simple statement a week ago that he hasn’t yet made up his mind. Without his support Democrats can’t force the tie needed to allow Vice President Kamala Harris to cast the deciding vote. Unless of course a Republican senator—say, Lisa Murkowski or Susan Collins—broke ranks too.
At the moment the anti-Becerra campaign is leading with the argument that at a time of pandemic he isn’t a doctor and has no experience in healthcare. But this isn’t much better than the argument that Betsy DeVos wasn’t qualified to be education secretary because she had no education degree or experience as a public-school teacher. What cabinet secretaries most need isn’t a particular expertise—they have many experts at their disposal—but leadership and judgment.
The other broad objection is that Mr. Becerra would use his post to push a left-wing agenda on issues such as abortion, Medicare for All and immigration. No doubt this is true. But how would Republicans like it if a GOP cabinet nominee were deemed unfit simply because she intended to promote pro-life policies?
The pity is that the focus on Mr. Becerra’s left-wing priorities and lack of healthcare experience deflects attention from the strongest reason for not confirming him. This is his troubling record on the religious-liberty protections in the Constitution, which every cabinet member is sworn to support and defend. Surely it is possible to find a health secretary who checks all the left-wing boxes but doesn’t have a record of steamrolling the Constitution when a religious minority gets in his way.
In a sense, Mr. Becerra embodies today’s threats to free exercise, which often take the form of executive fiat. In a pandemic, it isn’t always easy to balance fundamental liberties with reasonable and necessary restrictions. But as the Supreme Court reminded New York Gov. Andrew Cuomo in November when it blocked his arbitrary restrictions on religious worship, simply invoking “health” isn’t enough.
“Even in a pandemic, the Constitution cannot be put away and forgotten,” the high court declared.
California has imposed some of the nation’s most severe restrictions on worship. As the state’s attorney general, Mr. Becerra has defended them. Even after the Supreme Court rejected Mr. Cuomo’s restrictions as unconstitutional, Mr. Becerra continued to fight for similarly harsh rules in California.
After that decision in November 2020, the Pasadena, Calif.-based Harvest Rock church renewed its challenge to California’s ban on indoor worship in all but sparsely populated areas of the state. Last month, the Supreme Court sided with the church. While the state has some authority to impose restrictions, the justices ruled that it can’t target churches for treatment it doesn’t also apply to secular establishments.
California’s lawsuit involving the Little Sisters of the Poor, a Catholic order that cares for the elderly, shows another side of Mr. Becerra’s enthusiasm for riding roughshod over constitutional protections. During his confirmation hearings, Sen. John Thune accused him of “suing nuns.” Mr. Becerra protested that he’d never sued a nun.
That’s as technically true as it is disingenuous. Mr. Becerra is right that he sued the federal government, not the Little Sisters, over an HHS rule that granted them a religious exemption from having to cover contraceptives and abortifacients for their employees. But the whole aim of Mr. Becerra’s suit was to overturn the rule and thus strip the nuns of that protection.
In his own exchange with Mr. Becerra, Sen. Ben Sasse underscored that this was all about forcing the nuns to violate their religious beliefs. Mr. Becerra’s decision to target the exemption smacks of especially bad faith, given that it came after a Supreme Court decision that prohibited the government from fining the nuns and directed lower courts to find a way to get contraception to women without involving the Little Sisters.
In a recent speech, Justice Samuel Alito warned that “in certain quarters, religious liberty is fast becoming a disfavored right.” Certainly that will be the case at HHS if Mr. Becerra is confirmed.
Here’s a question for Mr. Manchin: If Ms. Tanden was unfit because she’s said mean things about senators on Twitter, what about a nominee who’s shown an aggressive disdain for a fundamental First Amendment protection?
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