“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
What’s at stake in this case?
DOJ appealed a district court decision that quashed a DOJ subpoena that harassed a health care provider offering transgender care.
What happened in this case?
Queerdoc is a telehealth provider of gender affirming care that focuses on treatment of patients, including minors, who suffer from gender dysphoria. Pursuant to a President Trump Executive Order seeking to prohibit federal support for such treatment, the Department of Justice (DOJ) issued a broad subpoena to Queerdoc, allegedly to pursue an investigation concerning compliance with federal health laws.
District judge Jamal Whitehead, who was nominated by President Biden to a seat in Washington state, conducted extensive proceedings and issued an order quashing the subpoena. He found that the subpoena was unenforceable because DOJ had issued it for the “improper purpose” of achieving Trump’s policy objective of “eliminating gender=affirming care.” DOJ appealed to the Ninth Circuit.
In August, Trump judge Daniel Bress provided the deciding vote in favor of a ruling by George W Bush judge Carlos Bea to reverse the district court decision and reinstate the DOJ subpoena. Clinton judge Richard Paez dissented in Queerdoc v DOJ. The majority maintained that Trump had the authority to “direct DOJ” to take investigatory and other actions “in a manner that aligns with his broader policy goals” – in this case, eliminating gender-affirming care. It claimed that the subpoena was within DOJ’s authority and that the record did not reflect “bad faith.”
Why did Judge Paez dissent?
Judge Paez strongly disagreed. The record shows, he explained, that the district court’s finding that DOJ had issued its subpoena “in bad faith” was not “clearly erroneous” and thus must be upheld. Although DOJ had submitted “essentially nothing” in opposition to the motion to quash, he went on, there was a “mountain of evidence” showing that DOJ “used the threat of criminal investigation to pressure health care providers to stop offering gender-affirming care.” The record showed that this was DOJ’s real goal, he wrote, and not “good faith investigation of potential violations” of federal health care law. The majority “manufactures legal errors,” Paez explained, that will “require federal courts to rubberstamp investigations initiated by the DOJ to harass opponents and chill disfavored causes,” as long as “the investigation serves the President’s policy priorities.”
Why is the decision harmful?
The decision made possible by Trump judge Bress clearly harms Queerdoc and its ability to provide gender-affirming care. It also sets a very bad precedent across the country concerning the ability of DOJ to use its subpoena power to harass providers of such care, an issue that has been raised and is pending in lower courts across the country. The case has been sent back to the district court to consider other objections to the subpoena, such as burdensomeness and overbreadth. Whether it is in this case or another, it is highly likely that the issue will reach the Supreme Court. The case also illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench..