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Should Justice Kagan Recuse from a Constitutional Challenge to Obamacare?

10:34 AM, Mar 31, 2011 • By JEFFREY H. ANDERSON
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Questions continue to arise about the propriety of having Justice Elena Kagan hear a constitutional challenge to Obamacare. Kagan was the Obama administration’s solicitor general for 14 months, and as the Department of Justice (DOJ) website puts it, “The task of the Office of the Solicitor General is to supervise and conduct government litigation in the United States Supreme Court.” The question, therefore, is whether Kagan would need to recuse herself from any Obamacare case due to any prior involvement in trying to anticipate challenges to the overhaul’s constitutionality and potentially giving advice on how to circumvent those. 

At NRO, Carrie Severino writes

A FOIA [Freedom of Information Act] request filed by CNS News has revealed 65 more pages of documents — but the questions [about Kagan’s potential prior involvement with Obamacare] have only intensified.  For example, we now know that high-ranking officials in DOJ, led by Tom Perelli, had been meeting to plan a strategy to defeat Obamacare challenges starting as early as January, months before the legislation was passed.  At that point Justice Stevens had not retired and Kagan had no reason to keep herself sequestered from any issues in order to preserve her.  Was she present for any of those meetings?  If not, did her delegates report back to her?  If so, did she participate in the discussions?

As of last fall, the Washington Post reported that Kagan had already recused herself from essentially half (25 of 51) of all Supreme Court case since she joined the Supreme Court—“all as a result of her 14-month tenure as solicitor general, the government's chief legal representative in the Supreme Court and the nation's lower appellate courts.” Nevertheless, Kagan and the Obama administration have claimed that there would be no need for her to recuse herself from any challenge to Obamacare.

Many questions about Justice Kagan’s potential prior involvement with Obamacare have not yet been answered, and Severino writes that further FOIA requests have been filed. But consider this: 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.  

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