- Issue: Should Supreme Court Justice Elena Kagan recuse (voluntarily withdraw) herself from the upcoming Supreme Court hearing on Obamacare since, as the solicitor general under Obama, she actively participated in drafting this law for potential defense in front of the Supreme Court and, for this specific reason, federal statute requires her do so?
- Summary: The Supreme Court will hearing various lower court decisions on the constitutionality of Obamacare in the Spring of 2012. It will be deciding whether the individual mandate that all Americans participate in the national healthcare program or be fined this is a violation of the 10th Amendment/Commerce clause (theUS government’s authority to regulate interstate commerce). Elena Kagan is the most recent Supreme Court justice appointed by President Obama and will be on the bench for the hearing on this matter. She was also solicitor general when Obamacare was being drafted and passed by Congress.
- Pro-Recusal Arguments: Many think that Kagan should recuse (voluntarily excuse) herself from this hearing since she participated, as solicitor general on behalf of the Obama administration, and since she/her department advised those drafting this bill on its wording in anticipation that it would be appealed to higher courts by its opponents. If this is true, she should recuse herself as having a conflict of interest and lack of objectivity needed to be an unbiased jurist.
“Kagan’s necessary recusal” by Rep. John Fleming, M.D. (Rep. R-LA) (Washington Times; 12/6/11)
“Kagan should recuse herself from Obamacare deliberations” by Examiner Editorial (Washington Examiner.com; 11/21/11)
- Anti-Recusal Arguments: Others are of the opposite opinion – that the documents produced by the White House and her confirmation testimony before Congress regarding Kagan’s involvement do not show sufficient involvement by her to require her to recuse herself.
Conflicts not enough for recusals on health care case (Washington Post; 12/5/11)
“The ObamaCare Recusal Nonsense” by Michael Mulkasey (Wall Street Journal; 12/5/11)
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