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Me for First Things: Democrats now in their ninth year of tormenting the Little Sisters of the Poor

January 19, 2019
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Photo: Joshua Roberts/Reuters

…The Democrats might have lost the 2016 presidential election, but there were plenty of blue states with Democratic administrations raring to continue harassing the gray-veiled Sisters. Days after the new interim HHS order was issued, five of those progressive-minded states—California, Delaware, Maryland, New York, and Virginia—filed a lawsuit in a federal district court in San Francisco seeking a nationwide injunction against its enforcement on grounds that technical requirements for notice and comment had not been properly followed. The suit was spearheaded by California Attorney General Xavier Becerra, known for his militant litigation against abortion opponents. The San Francisco jurist in charge of Becerra’s forum-shopped case was Haywood S. Gilliam Jr., a 2014 Obama appointee, and Gilliam promptly issued the requested nationwide injunction.

A few days later Pennsylvania Democratic attorney general and frequent Trump critic Josh Shapiro, unwilling to be outdone by Becerra, sued Trump directly along with agency officials over the interim rules in Philadelphia. The Pennsylvania lawsuit alleged a huge range of legal and constitutional problems with the interim rule, including violations of federal pregnancy and employment statutes and the Due Process and Establishment clauses of the U.S. Constitution….

You may wonder how states could have the “standing”—that is, the legal right to sue to challenge—a federal agency’s interpretation of a federal law that involves no state participation in any way. To have standing to sue in federal court, you have to allege a current or reasonably foreseeable concrete injury of some sort from the regulation’s application; you can’t sue simply because you don’t care for the politics behind the regulation or because you might look good to your liberal constituents. After all, California, Pennsylvania, and other states are always free to establish their own contraceptive mandates to be included in health-insurance coverage—which California, Delaware, Maryland, and New York already have.

But to take that point of view would be to underestimate the willingness of liberal federal courts to turn political issues into matters for federal judges to resolve….

Read the whole thing here.

Update: Thanks for the shout-out Instapundit! Instapundit readers, welcome, and read on!

Posted by Charlotte Allen

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