The Trump administration is requesting a 60-day delay with the federal courts so that they continue their negotiations with East Texas Baptist University and the other religious organizations that have requested relief from the HHS contraceptive mandate on religious grounds.
And the jury is still out whether President Trump, who campaigned as gay-friendly, will defend religious liberty when its under attack from the LGBT community.
Nevertheless, it is worth noting several of the key players in the Justice Department who might otherwise be tasked with handling the case, likely have to recuse themselves. After all, Donald Trump raided the law firm of Jones Day to staff key positions in his administration:
The global law firm Jones Day has announced that 14 lawyers will serve within the Trump Administration, the federal government, and also with the State of Illinois. “We are proud of the Firm’s heritage of having lawyers serve in the government, are gratified for those who have the chance to again serve in such critical capacities, and congratulate those honored to serve for the first time,” said Stephen J. Brogan, Managing Partner of Jones Day.
Donald F. McGahn II, who was General Counsel to Donald J. Trump for America, will serve the Trump Administration as White House Counsel. Mr. McGahn was Commissioner at the Federal Election Commission from 2008-2013 where he led what has been called a “revolution” in campaign finance. He rewrote virtually all of the FEC’s procedures for audits, enforcement matters, and advisory opinions, which provide for an unprecedented amount of due process. Several opinions he authored represent the current state of law regarding issues such as coordination, issue advocacy, campaign travel, political party programs, and emerging technologies. Mr. McGahn has also been featured in both the Wall Street Journal and New York Times as one of the “architects of the campaign finance revolution.”
Also serving in the Trump Administration will be Bill McGinley (Deputy Assistant to the President and Cabinet Secretary), Greg Katsas (Deputy Counsel to the President), Noel Francisco (Principal Deputy Solicitor General), John Gore (Deputy Assistant Attorney General, Civil Rights Division), Chad Readler (Principal Deputy Assistant Attorney General, Civil Division), James Burnham (Senior Associate Counsel to the President), Annie Donaldson (Special Counsel to the President and Chief of Staff to the White House Counsel), David Morrell (Associate Counsel to the President), Michael Murray (Counsel to the Deputy Attorney General), James Uthmeier (Special Advisor to the Secretary of Commerce), and Stephen Vaden (Special Assistant to the Secretary of Agriculture). Kaytlin Roholt will serve as Special Counsel to the Senate Judiciary Committee.
Jones Day was the law firm that spearheaded the litigation against the HHS mandate. They represented Notre Dame, the Diocese of Pittsburgh, and several other religious organizations in their fight against the Obama administration. Credit where credit is due: The Trump administration hired a bunch of people who were already fighting the HHS mandate to serve in the Justice Department. That’s a good sign.
The person at the Justice Department who might would normally handle this case is the Deputy Assistant Attorney General for the Civil Division. And that’s Chad Readler, who was a partner in Jones Day law firm.
Noel Francisco, who argued the case in federal court on behalf of religious organizations against the mandate, is now President Trump’s nominee for Solicitor General.
The job of the Solicitor General is to represent the United States Government’s position before the Supreme Court.
It’s fantastic that the Trump administration has hired so many top-rate lawyers from a law firm which has been defending religious liberty, against the HHS mandate. But that also means that these same lawyers would have recuse themselves from this specific case.
The Trump administration is likely waiting on the Senate to confirm a few more critical appointees to the Justice Department. Someone who might take up the case could be Rachel Brand, who has been nominated for Associate Attorney General — and is awaiting Senate confirmation. Just yesterday, the Senate finally confirmed Ron Rosenstein as Deputy Attorney General.
We are quickly approaching the end of the first 100 days of the Trump administration. And we look forward to the rescinding of the HHS mandate. But it is worth noting that in the past, the opposition party would use stalling tactics to delay only a few select nominees. But Senate Democrats, led by Chuck Schumer, have forced delay after delay after delay. And he’s not coy about it: “We’re going to ask about it for just about every one,” Schumer said, of a request for delays.
Of course, we still need to keep the pressure on President Trump to fulfill his promise of getting rid of the HHS mandate. And maybe that means they need some time to make sure this is done right.
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