November 15 2011
One Easy Decision to Make: Kagan Should Recuse Herself
Carrie L. Lukas
As Charlotte reported yesterday, ObamaCare is officially headed to the Supreme Court. The scope and impact of the deliberations will be unprecedented.
Cato's Ilya Shapiro details the breakdown of the five-and-a-half-hour deliberations, which will be broken into four parts. What's at stake? The ruling will be about more than just our country's health care system (as if that wasn't important enough), but about our basic understanding of the limits of government. Or, as Shapiro puts it:
...on both the individual-mandate and Medicaid-coercion issues, the Court will decide whether the Constitution’s structure — federalism and enumeration of powers — is judicially enforceable or whether Congress is the sole judge of its own authority. In other words, do we have a government of laws or men?
Great legal minds will be debating the Constitutionality of various aspects of the health care law. Yet here's one ruling that seems clean cut. Justice Elena Kagan should recuse herself from considering a law which she was cheerleading for when working for the Administration. CNS News reports on the criteria that's supposed to compel a Justice to recuse him or herself:
According to 28 USC 455, a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”
Meanwhile, emails show then-Solicitor General Kagan exchanging gleeful emails about the law's pending passage, with the subject line “fingers and toes crossed today!” How's that for impartiality? There are also emails that indicate that her top deputy—and possibly Kagan herself—attended Administration meetings specifically dedicated to formulating legal strategies for defending the law.
It will be interesting to see how the the law's advocates can argue that Kagan's active participation in pushing the law and considering legal challenges to it doesn't cross the line of having “expressed an opinion” or result in a “reasonable” question of her impartiality.
Also noteworthy from those released emails is how Kagan and Harvard Professor Larry Tribe make fun of of Rep. Bart Stupack and other members of Congress for stupidly accepting what amounted to a “signing statement on steriods” about keeping federal dollars from funding abortions.
Many noted at the time that Stupack was foolish not to realize that what he had won in all those negotiations was meaningless, but interesting to note that callousness of those who helped craft such compromises. Clearly, they consider his sincere convictions nothing but a joke.