Kagan refuses to recuse herself

Stacey Singer of the Palm Beach Post correctly points out that yesterday’s order issued by the Supreme Court not to expedite the Virginia ObamaCare lawsuit was “as significant for what it did not say as for what it did.”

The court’s order simply stated “The petition for a writ of certiorari before judgment is denied.”  Reading between the lines, the order implies that all nine Supreme Court Justices will hear the case.

Many had called — and still call — for Justice Elena Kagan to recuse herself.  Until May 17, 2010, Kagan served as United States Solicitor General, whose primary role (as stated on the Office of the Solicitor General website) 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.”  Because of her work as Solicitor General, Kagan has recused herself from 11 cases, but she will not do so from challenges to ObamaCare.  She should, for two reasons.

According to federal law (28 U.S.C. § 455), “Any justice, judge, or magistrate judge of the United States shall disqualify himself… [if] he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”  We know from documents obtained through CNS News’ FOIA request that the Office of the Solicitor General (OSG) had been preparing for legal challenges to ObamaCare in January 2010, two months before Obama signed the Affordable Care Act into law.  There is no way she did not serve as “counsel” or “advisor” concerning the constitutionality of ObamaCare.

28 U.S.C. § 455 also declares that a Kagan must recuse herself because she has expressed “a personal bias or prejudice” regarding ObamaCare’s constitutionality.  At her Senate hearings, Kagan revealed that she believes the Commerce Clause is almost infinitely elastic: it can be “applied to anything that would substantially affect interstate commerce.”

The Commerce Clause lies at the heart of the constitutional challenge to ObamaCare.  The government defends its right to impose the individual mandate (that everyone must buy health insurance) by citing the Commerce Clause, which states that the federal government can govern interstate commerce.

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