The U.S. Supreme Court announced that it will hear a challenge to the Obamacare ruling issued by a 3-judge panel of the 11th Circuit Court of Appeals. That appellate court panel struck down Obamacare’s individual mandate but not the rest of the legislation, despite the White House’s assertion that the mandate is “absolutely intertwined” with Obamacare’s requirement that insurers cover all comers without charging higher premiums for those who sign up for “insurance” only after they become seriously ill or injured. The key question that remains at this time is whether Justice Elena Kagan will recuse herself from the case.

Prior to her nomination by President Obama almost two months after Obamacare’s passage, Kagan was Obama’s solicitor general and hence his top legal advocate. As such, throughout the Obamacare debate, she headed the office that was responsible for formulating the administration’s legal defense of Obamacare. The Department of Justice’s (DOJ’s) own website says,

The task of the Office of the Solicitor General is to supervise and conduct government litigation in the United States Supreme Court. Virtually all such litigation is channeled through the Office of the Solicitor General and is actively conducted by the Office….The Solicitor General determines the cases in which Supreme Court review will be sought by the government and the positions the government will take before the Court.”

As Carrie Severino writes, “The preparation for [Obamacare] litigation began at least as early as January 2010, when strategy meetings were organized by top DOJ officials to defend the law against anticipated challenges. At that time there was no opening on the Supreme Court and, by Kagan’s own testimony, she had not been informed that she was on the shortlist for a future opening.”

Severino documents that “Kagan took early and aggressive action to involve her office in Obamacare” and was “was part of the deliberative process in the Obamacare defense strategy.” Kagan’s own carefully worded testimony grants that she attended “at least one” meeting in that vein. Severino writes,

“Kagan’s responses to Senate questions during her confirmation process essentially admit her involvement in the case. When asked about the HHS [Health and Human Services] case she stated: ‘I neither served as counsel of record nor played any substantial role, as defined above.’ In other words, she participated in the case, but not, according to her, substantially.”

Severino adds, “In her hearing testimony, Kagan underestimated the scope of her recusal obligations, stating that she would recuse herself from any case in which she ‘officially formally approved something.’” However, judges are legally bound to recuse themselves if they have “previously taken a part, albeit small, in the investigation, preparation, or prosecution of a case.”

As I’ve written previously, “During her tenure as solicitor general — from March 2009 to May 2010 — the Obama administration’s main and almost sole emphasis was on advancing Obamacare. It strains (even if it doesn’t quite break) the limits of credulity to suggest that Kagan, the government’s top litigator, wasn’t at all involved — even on an advisory basis — in any of those efforts.”

In addition, judges are legally bound to recuse themselves if their “impartiality might reasonably be questioned.” On the morning of March 21, 2010, the day that Obamacare would pass the House, prominent liberal Harvard law professor Laurence Tribe sent Kagan an email with the following subject line: “fingers and toes crossed today!” Kagan replied, “I hear they have the votes, Larry!!” She added, “Simply amazing.”

If Kagan doesn’t recuse herself, her vote is a foregone conclusion. In addition to the above evidence to this effect, during her confirmation hearings, Senator Tom Coburn asked Kagan whether Congress could constitutionally pass a law ordering Americans “to eat three vegetables and three fruits, every day.” Coburn asked, “[D]oes that violate the commerce clause?” Kagan replied, “I think that the question about whether it is a dumb law is different from the question of whether it's constitutional. And I think the courts would be wrong to strike down laws that they think are senseless just because they’re senseless.” So while it may be “dumb” and “senseless” to force Americans to eat three vegetable and three fruits every day, it’s apparently not — in Kagan’s estimation — unconstitutional.

Some on the left have argued that Justice Clarence Thomas should recuse himself from the case because his wife works for the Heritage Foundation (the political arm of which advocates Obamacare’s repeal) and may think the overhaul is unconstitutional. But needless to say, husbands and wives are free to disagree on such matters, and Mrs. Thomas doesn’t serve on the High Court. As Adam White writes,

“[This] logic is silly, if not offensive. Husbands and wives often disagree about politics and policy — either in the big picture or in the details. What does [the] contrary argument imply, that Mrs. Thomas is mindlessly furthering Justice Thomas’s policy views? (An echo, not a choice?) That's hardly charitable to Mrs. Thomas, or wives generally. Or does [this] mean that Justice Thomas is just doing his wife’s bidding?”

With or without Kagan, the Supreme Court has allotted 5-1/2 hours for oral arguments on Obamacare, rather than its customary hour. (This appears to be a modern record, although in the early days of the country, when great lawyers like Daniel Webster argued before the Marshall Court, oral argument could span several days.) The arguments will proceed over two days in late March, about the time of the 2-year anniversary of Obamacare’s passage. The time will be divvied up as follows: 2 hours on the constitutionality of the individual mandate, either under the Commerce Clause or under Congress’s taxing power (despite the fact that Obama emphatically denied during the Obamacare debate that the individual mandate is a tax); 1-1/2 hours on whether the rest of Obamacare should be struck down if the individual mandate is struck down; 1 hour on whether the Anti-Injunction Act bars the suits (a position that neither the states nor the Obama administration is taking); and 1 hour on whether the new terms and conditions that Obamacare imposes on states’ continued participation in Medicaid are an unconstitutional exercise of federal power at the states’ expense.

The Court’s decision is expected in late June, just over four months before the 2012 presidential election.

If the Court strikes down Obamacare in its entirety, it will be a historic day for a Court “whose duty it must be to declare all acts contrary to the manifest tenor [obvious meaning] of the Constitution void.” If that happens, the Court will have recognized that the individual mandate is plainly unconstitutional and that, without the mandate, the rest of the legislation cannot function as intended and clearly would never have been passed by Congress in that form. But given the current composition of the Court, Obamacare’s opponents would be wise to proceed with no expectation of this result. Instead, they should proceed with the full expectation that they will have to prevail through the political (as opposed to the judicial) process.

If the Court strikes down the individual mandate but nothing else, it will be a recognition by that tribunal that Obamacare is not only terrible policy (not the Court’s proper concern) but was passed with an unconstitutional mandate as its linchpin. However, it will also make Obamacare even more of a fiscal disaster and will therefore have essentially no impact on the importance of repeal, which will remain the most crucial thing for the next administration and Congress to achieve.

If the Court fails to strike down any part of Obamacare as a violation of the plain limits of federal power granted under the Commerce Clause — a result will be especially likely if Justice Kagan hears the case — then it will become all the more crucial to defeat President Obama and elect a new president who will go to the mat to repeal Obama’s signature legislation through the legislative process.

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