Xavier Becerra tapped to lead HHS and COVID response. Plus federal judge says DACA must be reinstated

Written by Amy Ta, produced by Michell Eloy

President-elect Joe Biden has picked California Attorney General Xavier Becerra to head the Department of Health and Human Services. Becerra doesn't have a medical background, but he has been at the forefront of defending the Affordable Care Act against the Trump administration.

“Becerra was picked in part because he has been the epicenter of the Trump resistance,” says Jessica Levinson, professor at Loyola Law School. 

“Part of this pick is not just that he was a vigorous defender of the Affordable Care Act, not that he has been talking about health care for a long time, not just that he's been talking about criminal justice reform, and he will be presiding over the issue of family reunification from children who were separated at the border. But I think this is also about showing that we really are going to see a completely different administration.”

There was also a lot of pressure to pick a Latino person as part of the Biden administration, Levinson notes. 

But why not Becerra as attorney general of the U.S.? He has filed more than 100 legal challenges against the Trump administration and won more than half of them. Levinson says the Biden administration must have someone else in mind to be attorney general. 

“This still is a big job [HHS Secretary]. And I think that what we've seen in the past is you don't always have somebody who has a medical background. Now, of course, this is different. … Because we're in the middle of a pandemic, and Health and Human Services in the middle of a pandemic, obviously, is a different role. But it's not totally outside the norm, he's not totally outside of the model of who's picked for HHS.”

DACA is back in full swing

The Trump administration must fully reinstate the Deferred Action for Childhood Arrivals (DACA) program and admit all new applicants. That’s the order from U.S. District Judge Nicholas Garaufis. 

Levinson explains the judge’s argument: “The acting director of Homeland Security, Chad Wolf, did not have authority when he said, ‘Let's try and cut the legs out of DACA. Let's try and not allow any new applicants. Let's try and limit these permits from two years to one year.’ And if he doesn't have the authority to create those limitations, then they have to go back into effect.”

Levinson says this is probably the last chapter for the battle between the Trump administration and DACA, and right now, there are some 300,000 people who are eligible to apply for DACA protection for the first time. 

This partially stems from the Supreme Court’s July ruling that the administration didn’t explain how they wanted to properly and legally end DACA, a program that former President Barack Obama created in 2012 through an executive order. 

The Trump administration argued that if the program was created by a president, it could end by a president. 

“The answer is yes it can. But the Trump administration, the Supreme Court said (in not these words) was essentially so sloppy about it that they had to come forward with different reasons for why they would try and end a program that so many people relied on,” says Levinson. 

“Because the program still stood, that's when Acting Secretary Chad Wolf tried to not end the program, but whittle it down, kind of a death by 1000 paper cuts approach to DACA. And that's what the judge just said, ‘No, you don't get to do that.’”

Levinson says DACA is back to full steam as of today, and she doesn’t expect the Supreme Court to not revisit it.  

However, one group of Republican attorneys general are currently arguing that DACA itself is not legal, though versions of this have happened before, says Levinson. 

“We have, again, seen similar cases where judges have upheld the program. … It just stresses my point that we need to create a legislative solution, and Dreamers are pretty politically popular. This could be a moment for bipartisan support. But it's one of the things that needs to be on the top 10 list.”