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Supreme Court to Hear Obamacare Challenge Involving 26 States

But will the case be heard by 8 justices, or 9?

10:12 AM, Nov 15, 2011 • By JEFFREY H. ANDERSON
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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. 

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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.”

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