Kagan's Past Undermines Her Ability to Judge Obamacare Impartially

President Obama took the stage on Wednesday to offer this year’s Thanksgiving turkey pardon. And with a mere wave of his hand, Obama gave two turkeys, named Liberty and Courage, a reprieve from sitting next to the mashed potatoes and cranberry sauce on someone’s Thanksgiving dinner plate.

It will take more than a hand gesture to save President Obama’s signature accomplishment – the health care reform bill better known as Obamacare. In fact, it will take a majority of the sitting Justices of the Supreme Court, which recently agreed to take up the case following several conflicting decisions by federal courts.

The question that will be decided extends well beyond the bounds of the constitutionality of Obamacare. At its core, the decision will decide the limits of Washington’s power under the Commerce Clause to compel certain activities.

The Commerce Clause is already one of the broadest instruments of Congressional power. It is the foundational text that has allowed Washington to regulate anything impacting interstate commerce. But the case of the individual mandate is wholly different from past applications in that it Congress attempting to regulate the absence of commerce.

That is to say, Obamacare claims it can require you to buy health insurance because the uninsured may, at some undetermined point, impose costs on the wider economy. But this power would know no bounds. If this theory is found to be constitutional, Washington could require Americans to purchase certain services or perform certain actions since the failure to do so would “impact commerce.” Or as one circuit court said, “The government’s struggle to articulate cognizable, judicially administrable limiting principles only reiterates the conclusion we reach today: there are none.”

For instance, Congress could compel you to join a gym, or eat broccoli at every meal, because doing so would presumably make you healthier and reduce the national cost of health care. It could force you to buy an electric car to reduce the demand, and therefore the costs, of oil. It could (like China) limit the number of children you can have with the understanding that they will put a strain on the federal government’s entitlement programs. In essence, they can do anything. This is truly opening Pandora’s Box.


The importance of this decision means a lot of power rests in the hands of the Supreme Court Justices. Now, questions are arising as to whether Justice Elena Kagan, President Obama’s most recent appointee, should recuse herself because of a conflict of interest.

Federal law requires recusal from a case if a judicial officer of the United States “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 or controversy.” In addition, a federal judge must disqualify herself if her “impartiality might reasonably be questioned.”

As the Solicitor General during the Obama Administration’s defense of the health care law, does Kagan’s history disqualify her from hearing the case?

Emails uncovered by Judicial Watch, suggest, if nothing else, that she strongly supported Obamacare’s passage.

A March email from Kagan to then-Senior Counselor Laurence Tribe said, “I hear they have the votes Larry!! Simply amazing…” On the day Obamacare passed, then-Deputy Solicitor General Neal Katyal forwarded Kagan an email about a meeting with “the health care policy team tomorrow at 4 to help us prepare for litigation.”

These statements call into question not only her role as adviser on the potential litigation over Obamacare, but her impartiality over the law. And it is not as her recusal would be unprecedented. Indeed, Justice Kagan has stepped aside on 29 of the 82 Supreme Court cases heard during her term because of her previous work as Solicitor General.

The Obamacare decision will be one of the most important Supreme Court rulings of our lifetime. And while Obama may, with a flick of his hand, pardon a turkey, this case requires a measured and impartial study of the law as it relates to precedent. Can Elana Kagan provide that? Her past suggests not.