Supreme Court to Review ObamaCare: Will Justice Kagan Recuse Herself?

by Mike Mintz on November 30, 2011


In the wake of an upcoming Presidential election, on November 14, the U.S. Supreme Court agreed to review three cases challenging the constitutionality of the Patient Protection and Affordable Care Act (PPACA), otherwise known as “Obamacare.” For the procedural history and background of these cases, see “Supreme Court to Review Challenges to Health Care Reform Act.” The cases maintain that the PPACA is an unconstitutional regulation of commerce.

The Supreme Court will hear arguments on whether Congress had the power under Article I of the U.S. Constitution to enact the minimum coverage provision and whether the Anti-Injunction Act (AIA) bars the minimum coverage provision. Specifically at issue is whether the PPACA unconstitutionally mandates individuals to acquire health insurance or pay a fine, thereby forcing Americans to buy a product or service and exceeding Congress’s enumerated powers. If the Court finds that the mandate is indeed unconstitutional, the Court will then have to determine whether the mandate can be severed from the remainder of the Act or whether the entire law must fail.

The oral arguments will be held in March of 2012 and will last five hours. Assuming the case remains on schedule, we can expect a possible decision in June, 2012, only four months before the impending presidential election. The decision is presumed to be a pivotal matter for the Obama campaign.

To dramatize the events of the case even further, Senate Republicans have increased pressure for Justice Elana Kagan to recuse herself from the Supreme Court panel of judges to hear arguments on the PPACA’s constitutionality. Additionally, House Judiciary Committee Chairman Lamar Smith (R-TX) requested documents detailing Kagan’s position as Obama’s solicitor general.

However, in the end, justices themselves decide whether they have a conflict that would make them impartial and warrant recusal. U.S. Code 28 § 455 requires judges to recuse themselves when, inter alia, their “impartiality might be reasonably questioned,” they have a person bias or prejudice or “where [they have] 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.” As Kagan was formerly Obama’s solicitor general, and therefore, his counsel, many believe that she must remove herself from this case.

In a written response on the issue, Kagan said, “I attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred.” She also stated that she did not legally advise the administration on the legality or constitutionality of the Act. So, it appears that, at the moment, Kagan has no intention of withdrawing from the action. But, to be sure, the congressional Republicans will continue to request documents, inspect e-mails and apply tremendous amounts of pressure upon the Justice to step back from this high profile and crucial case and let the other Justices decide the matter without Obama’s former solicitor general’s opinion in the mix.

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