So, will Elana Kagan recuse herself from USSC Obamacare case?

[Little-Acorn]

Elana Kagan was Solicitor General for the Obama administration while Obamacare was being crafted, and likely had an active hand in making sure it was "legal", by whatever odd definition the Obamanites wanted to use. Mnay people say that, now that she is a Supreme Court justice, she should recuse herself from consideration and judging on a bill that she helped put together.

Suppose the four Constitutional justices (Roberts, Alito, Thomas, Scalia) vote against Obamacare, and the remaining big-govt justices (Ginsburg, Breyer, Sotomayor) vote for it, and Kennedy weathervanes to the left and also votes for it. Then if Kagan were to recuse herelf, the outcome would be a 4-4 tie on the Supreme Court.

And this would make it very significant WHICH case was being examined... because a tie would cause the decision of the previous court (11th circuit in this 26-state case) to be upheld. And that previous court has struck down the Mandate, as unconstitutional.

So Obamacare would quickly die.

So, Kagan could be regarded as the "tiebreaking" vote, by her decision to recuse herself or not. (If she does not recuse, then she would surely vote for Obamacare; if she does recuse, then the 11th circuit's strikedown would become "law" if the other justices vote as described).

Will she or won't she?

[Little-Acorn]

http://www.cnsnews.com/news/article/kagan-tribe-day-obamacare-passed-i-hear-they-have-votes-larry-simply-amazing

Kagan to Tribe on Day Obamacare Passed: ‘I Hear They Have the Votes, Larry!! Simply Amazing.’

By Terence P. Jeffrey
November 10, 2011

(CNSNews.com) - On Sunday, March 21, 2010, the day the House of Representatives passed President Barack Obama’s Patient Protection and Affordable Care Act, then-Solicitor General Elena Kagan and famed Supreme Court litigator and Harvard Law Prof. Laurence Tribe, who was then serving in the Justice Department, had an email exchange in which they discussed the pending health-care vote, according to documents the Department of Justice released late Wednesday to the Media Research Center, CNSNews.com's parent organization, and to Judicial Watch.

“I hear they have the votes, Larry!! Simply amazing,” Kagan said to Tribe in one of the emails.

The Justice Department released a new batch of emails on Wednesday evening as its latest response to Freedom of Information Act requests filed by CNSNews.com and Judicial Watch. Both organizations filed federal lawsuits against DOJ after the department did not initially respond to the requests. CNSNews.com originally filed its FOIA request on May 25, 2010--before Elena Kagan's June 2010 Supreme Court confirmation hearings.

The March 2010 email exchange between Kagan and Tribe raises new questions about whether Kagan must recuse herself from judging cases involving the health-care law that Obama signed--and which became the target of legal challenges--while Kagan was serving as Obama's solicitor general and was responsible for defending his administration’s positions in court disputes.

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.”

[logroller]

Dems tried this too, with Thomas over his wife's comments and their household's financial interests, but I would be highly surprised if Kagan or Thomas recused themselves. This issue is so heated politically that any recusal would be seen as cowing to political pressure-- something the justices are keen to avoid. Plus Kagan already said she wouldn't during the confirmation process...so...what would of changed her mind between then and now?

[red states rule]

The liberal has started to show their support for Obamacare and how the USSC must ignore the US Constitution and allow Obamacare to become the law of the land




snip

Therefore, even though it appears that some people are abstaining, in fact everyone is already making an "affirmative" active economic choice to purchase health insurance or to self-insure. The Affordable Care Act regulates this economic activity by imposing a penalty on those who choose to self-insure in order to create a system in which all can have access to the healthcare system.

The second question then becomes whether, taken cumulatively, the law has a substantial effect on interstate commerce. Health-related spending was $2.5 trillion in 2009, or 17.6% of the national economy. In the last case to deal with the scope of Congress' commerce clause power, Gonzales vs. Raich in 2005, the court held that Congress constitutionally could criminally prohibit and punish cultivation and possession of a small amount of marijuana for personal medicinal use.

If Congress' commerce clause powers allow it to prevent Angela Raich from growing a small amount of marijuana to offset the ill effects of chemotherapy (http://www.latimes.com/topic/health/health-treatments/chemotherapy-HETHT00009.topic), then surely it has the authority to regulate a $2-trillion industry.

Moreover and very importantly, Gonzales vs. Raich reaffirmed that Congress need only have a "rational basis" for believing that it is regulating economic activity that has a substantial effect on interstate commerce. It is inconceivable that it could be successfully argued that there is not a rational basis for believing that the individual mandate has a substantial effect on interstate commerce. Simply adding 50 million people to the rolls of those with healthcare coverage would have an enormous economic effect.

Why, then, so much uncertainty surrounding what the Supreme Court will do? The reactions to the Affordable Care Act have been almost entirely defined by partisanship. Every Republican in Congress voted against it. With two exceptions, every federal judge appointed by a Republican president has voted to strike down the law, and with one exception, every federal judge appointed by a Democratic president has voted to uphold it.

But shouldn't we expect more of Supreme Court justices than this? Last Tuesday, one

of the most conservative federal judges in the country, Laurence Silberman, on the U.S. Courtof Appeals for the District ofColumbia Circuit, wrote an opinion upholding the individual mandate and indicating that it was clearly constitutional, even if he personally thinks it goes too far.

Will even the conservative justices follow Silberman's lead and apply well-established constitutional principles? Or will the conservatives on the court see this entirely in the partisan terms that have surrounded the Affordable Care Act from the outset? We'll know by the end of June, and few Supreme Court decisions will be more important in the lives of people and for the country.

http://www.latimes.com/news/opinion/commentary/la-oe-chermerinsky-healthcare-20111115,0,4312764.story

[logroller]

The liberal has started to show their support for Obamacare and how the USSC must ignore the US Constitution and allow Obamacare to become the law of the land
Wholly crap RSR, they're just now starting? Ah shit, we're in for it then, cause I thought they'd been supporting it for a while now.:laugh:

and BTW-- Obamacare passed Congress and was signed by the President-- so it IS the law of the land, it just hasn't been implemented yet.

which brings up rather the Anti-Injunction Act will be considered...just saying..it's possible we wont see a ruling on this until 2015.

[red states rule]

Wholly crap RSR, they're just now starting? Ah shit, we're in for it then, cause I thought they'd been supporting it for a while now.:laugh:

and BTW-- Obamacare passed Congress and was signed by the President-- so it IS the law of the land, it just hasn't been implemented yet.

which brings up rather the Anti-Injunction Act will be considered...just saying..it's possible we wont see a ruling on this until 2015.

Valid point. Lets say the liberal media is increasing their level of support and will be running more pro Obamacare op-eds on the front page than they have in the past

While Obamacare has not been "implemented" yet - many of the tax increases contained in the bill have been

[Little-Acorn]

Dems tried this too, with Thomas over his wife's comments and their household's financial interests

Thomas' wife Virginia works for a conservative advocacy group, that works on elections, issues scorecards for Congressmen, etc. It's safe to say that group probably doesn't like Obamacare much, and would like to see it gone.

But that's OK. It's balanced by Virginia's husband's employment. He works for a group (the U.S. Government) that also works on elections, issues a LOT of opinions on congressmen (mostly unfavorable ones on conservatives), and wants very much for Obamacare to remain in effect and even expand.

So the two Thomases balance each other out. And unlike Kagan, Clarance Thomas had nothing to do with the writing or advocacy of the Obamacare law.

[logroller]

Thomas' wife Virginia works for a conservative advocacy group, that works on elections, issues scorecards for Congressmen, etc. It's safe to say that group probably doesn't like Obamacare much, and would like to see it gone.

But that's OK. It's balanced by Virginia's husband's employment. He works for a group (the U.S. Government) that also works on elections, issues a LOT of opinions on congressmen (mostly unfavorable ones on conservatives), and wants very much for Obamacare to remain in effect and even expand.

So the two Thomases balance each other out. And unlike Kagan, Clarance Thomas had nothing to do with the writing or advocacy of the Obamacare law.

I know what you're saying; I'm saying during the confirmation process that was brought up, she said she wouldn't recuse herself and they confirmed her anyway. So the odds of her doing so now, on arguably one of the most anticipated rulings in recent memory, is slim to none. Could happen, but I doubt it.

[avatar4321]

nope

[red states rule]

and the liberal media is doing what they can to assist the administration by ignoring the calls for Kagan to recuse herself

and how unpopular Obamacare is with the voters





While NBC, ABC, and CBS all reported on the Supreme Court's decision Monday to rule on the constitutionality of ObamaCare, none of the coverage made any mention of calls for liberal Justice Elena Kagan to recuse herself from the case due to her advocacy for the legislation as Obama's solicitor general.

Of the three networks, only ABC's World News even noted public opposition to the legislation, as White House correspondent Jake Tapper explained: "The health care law is tremendously unpopular with a new high of 51 percent of Americans viewing it unfavorably and new low of 34 percent approving of it."

On NBC's Nightly News, justice correspondent Pete Williams simply portrayed the law as unpopular with those on the right: "Tea Party protesters took to the streets to condemn it. And every Republican candidate for president is against it." On CBS's Evening News, legal correspondent Jan Crawford reported: "[Obama] had to force the Affordable Care Act through a reluctant Congress. In the end, the law passed without a single Republican vote."

Both NBC and CBS held out hope that the high court would uphold ObamaCare. Williams announced: "As for how this ideologically divided court might rule, legal experts say it might not be the usual 5-4 split. Some of the court's conservatives have been willing to uphold broad uses of federal power in the lives of individual citizens." Crawford similarly observed: "Now even though this court leans conservative, that does not necessarily mean it will rule against the administration. In the lower courts, some conservative judges have voted to uphold the law."

CBS's coverage was particularly slanted, as Evening News anchor Scott Pelley opened the broadcast by fretting: "Will the plug be pulled on health care reform?" He later teased: "The Supreme Court will decide whether health reform lives or dies." Crawford declared: "The administration says the law's individual mandate provision is critical to its success. Health reform measures, like insurance for people with pre-existing conditions, won't work unless all Americans pay into the system."


Read more: http://www.newsbusters.org/blogs/kyle-drennen/2011/11/15/networks-ignore-calls-kagans-recusal-supreme-court-takes-obamacare-cas#ixzz1dr2NV2Ua