Kagan refuses to recuse on Obamacare

By John Vinci

Today, the U.S. Supreme Court agreed to hear the so-called “26-state lawsuit” against the Patient Protection and Affordable Care Act, better known as Obamacare. This announcement ends speculation whether recent Obama appointee Justice Elena Kagan will recuse herself from the case.

It is clear that Justice Kagan has refused requests that she not participate in this ruling. The failure of the Court order to note that Kagan had recused herself indicates that she has not. Traditionally, when a justice decides not to participate in a decision to hear a case, the Court order notes that fact. No notification means that it can be assumed that each justice participated in the decision, including Kagan.

The calls for Justice Kagan to recuse herself are based upon her role as Obama’s Solicitor General when Obamacare was passed. In this position, she must have been involved in the strategy decisions on how to defend Obamacare. In fact, and by her own admission, she “was present at ‘at least one’ meeting in which the challenges to PPACA were discussed.”

This admission on its face should have disqualified Kagan from participating in the Court case, as she and those who reported to her, were heavily involved in framing the arguments supporting the law.

ALG’s, Bill Wilson argues that, “Kagan is no more of an independent jurist on this issue than Obama himself would be. For her to refuse to recuse herself from the Supreme Court’s consideration of the constitutionality of the law is an affront to the American system of jurisprudence.”

Additionally, in a recent Senate hearing, Obama Attorney General Eric Holder was pressed for information on whether the Justice Department intended to comply with a House Judiciary Committee’s request for information on Kagan’s involvement in the Obamacare lawsuit while she was Solicitor General.

Holder denied familiarity with the request and declined to answer. To date there is no public record of whether the Justice Department complied with this routine, but important congressional inquiry.

In the Order to hear the case, the Supreme Court agreed to hear a modern record of five and a half hours of argument considering essentially four questions:

Can the federal government mandate individuals to purchase health insurance?
If it’s not constitutional, how much of the Obamacare statute must the Court strike down?
Does the Anti-Injunction Act bar lawsuits against the individual mandate?
Is Obamacare’s expansion of Medicaid an unconstitutional mandate on the states?
The case will be argued in the spring with a decision anticipated in June 2012.

John Vinci is a staff attorney with Americans for Limited Government who specializes in health care policy.

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