Justice Kagan should recuse herself from Obamacare case

This spring the U.S. Supreme Court will decide what may well be the case of the century — the constitutional challenge to Obamacare. But will the case be heard by eight or nine justices?

Before the health care law was even passed, the Department of Justice had been meeting to develop a strategy for defending the law from constitutional attack. Involved in this effort was none other than Elena Kagan, now the newest Obama appointee to the Supreme Court.

See Video at: ObamaCare: Recuse Kagan! – Dick Morris TV Lunch Alert

Federal law requires Supreme Court justices to recuse from a case if they had earlier “participated as counsel” in the case. Justice Kagan did just that when she was Obama’s solicitor general, but has never explained why she believes she is nevertheless justified in sitting on the case under this standard.

One simply can’t be the coach and referee in the same game. At best, knowing the playbook will color your judgment, and at worst, you’ll be on the lookout for chances to give your former team an advantage.

Here are the facts. It took two lawsuits to get “the most transparent administration in history” to release emails detailing Kagan’s involvement in the Obamacare defense. Those emails show that, in a highly unusual move, she ordered her staff to become involved in the defense before the law was even passed.

Perhaps this turn of events is explained by the fact that, upon passage of Obamacare, Kagan’s reaction to a confidant was “I hear they have the votes, Larry!! Simply amazing.”

Possibly most damning is the fact that Kagan received privileged internal strategy about the case. We know this because the Obama administration redacted portions of Kagan’s emails under a Freedom of Information Act exemption that specifically prevents the disclosure of government deliberations.

Kagan is prohibited from sharing that privileged information even with her colleagues on the Supreme Court when they in turn deliberate on Obamacare.

In sum, Kagan’s direction of the administration’s defense, as well as her inclusion in “let’s run this by the boss” discussions about the government’s strategy, constitute more than enough participation as counsel to require her recusal under the law.

To be fair, as the calls for Kagan’s recusal have intensified, some have rushed to her defense, suggesting that she had insulated herself sufficiently from her office’s defense of Obamacare.

Her deputy at the Solicitor General’s Office, Neal Katyal, has said that she was “walled off from Day One.” Why anyone thought Obama’s top lawyer had to be walled off of such a monumental case in the first place is revealing in itself.

In any event Katyal apparently breached that wall with impunity by suggesting that she attend Obamacare strategy meetings, by promising to bring her in such meetings “as needed,” and by copying her on internal emails discussing defense strategies.

Or perhaps Katyal simply regarded “Day One” as occurring later in the process, such as after the Obamacare challenges were actually filed or after Kagan was put on the short list for a Supreme Court nomination.

But by those times Kagan was already too involved in the government’s defense to later sit on the case as a judge. Legally speaking, pre-suit participation in a case still triggers recusal.

The stakes cannot be higher. The Supreme Court will determine whether the federal government has the power to mandate that every American purchase and maintain government-approved insurance from birth until death – all in the name of regulating interstate commerce.

With such a closely divided court, it may all come down to Justice Kagan’s vote, but her vote is too tainted. To preserve the integrity of our Supreme Court on the most important case of the century, Justice Kagan should recuse.

Carrie Severino is policy director and chief counsel of the Judicial Crisis Network.


By: Carrie Severino | 11/27/11 8:05 PM l Op-Ed Contributor – Washington Examiner – Cross-Posted at True Health is True Wealth


The Agenda Project: Supreme Control

Kagen: Liberal Supreme

Judiciary Committee Probes Kagan’s Role in ObamaCare at GOP’s Request

Elena Kagan Tied to Obama’s Birth Certificate

Papers Prepared to Disbar Kagan

Video: The Other Barak? (Aharon Barak)

Video: Kagan: Constitution Was Meant To Be “Interpreted Over Time” from RCP Video on Vimeo.

Why Justice Thomas Should ‘Not’ Recuse Himself

About Ask Marion

I am a babyboomer and empty nester who savors every moment of my past and believes that it is the responsibility of each of us in my generation and Americans in general to make sure that America is as good or even a better place for future generations as it was for us. So far... we haven't done very well!! Favorite Quotes: "The first 50 years are to build and acquire; the second 50 are to leave your legacy"; "Do something that scares you every day!"; "The journey in between what you once were and who you are becoming is where the dance of life really takes place". At age 62 I find myself fighting inoperable uterine Cancer and thanks to the man upstairs and the prayers from so many people including many of my readers from AskMarion and JustOneMorePet... I'm beating it. After losing our business because of the economy and factors related to the re-election of President Obama in 2012 followed by 16-mos of job hunting, my architect-trained husband is working as a trucker and has only been home approximately 5-days a month since I was diagnosed, which has made everything more difficult and often lonely... plus funds are tight. Our family medical deductible is 12K per year for two of us; thank you ObamaCare. But thanks to donations from so many of you, we are making ends meet as I go through treatment while taking care of my father-in-law who is suffering from late stage Alzheimer's and my mother-in-law who suffers from RA and onset dementia as well as hearing loss, for which there are no caretaker funds, as I continue the fight here online to inform and help restore our amazing country. And finally I need to thank a core group of family, friends, and readers... all at a distance, who check in with me regularly. Plus, I must thank my furkids who have not left my side through this fight. You can see them at JustOneMorePet.
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