The two New Jersey activists suing the government to stop the health care reform bill have asked two appellate judges to recuse themselves.

Nicholas E. Purpura and Donald R. Laster Jr filed a motion today with the Third Circuit Court of Appeals. They seek to disqualify two Third Circuit active judges, both Obama appointees, from hearing their appeal.

The issue of the appeal

The case of Purpura v. Sebelius came before the Third Circuit after Judge Freda L. Wolfson of the District Court for New Jersey dismissed it. Judge Wolfson said that the two plaintiffs lacked standing. They are challenging that ruling.

Judges Joseph A. Greenaway and Thomas I. Vanaskie both came to the Third Circuit bench last year. Because Barack H. Obama appointed them, their jobs are at stake in the case.

How?

The James A. Byrne Federal Courthouse, Philadelphia, PA, home of the Third Circuit Court of Appeals. More than one health care reform bill case is on appeal here. Photo: US Department of Justice

Purpura v. Sebelius alleges fifteen separate counts against the health care reform bill. One of them—Count Six—says that Obama is not now and never was qualified to sign any bill into law. The reason: he is not a natural-born citizen within the meaning of the Constitution. Therefore he is not the President of the United States. And for that reason he cannot appoint federal judges—and Greenaway and Vanaskie would both lose their appointments as soon as Purpura and Laster prevail.

The Third Circuit has thirteen active judges and ten senior judges. Greenaway and Vanaskie are the only two Obama appointees.

The clerical staff of the Third Circuit told Purpura and Laster earlier that several judges have already recused themselves from this case. But they refuse to tell them which ones.

In their motion to have Greenaway and Vanaskie recuse themselves, Purpura and Laster reminded the court that if their clerks had simply told them which judges had already recused themselves, they might not now have to move on Greenaway and Vanaskie. Three days ago they sent another letter to the chief deputy clerk, asking her to tell them which judges are on the three-judge panel that is already considering their appeal and two earlier motions. They point out that a thorough search of the Federal Rules of Appellate Procedure and the Third Circuit’s Local Appellate Rules turned up no grounds for the clerks to refuse the names.

What other counts does the case allege against the health care reform bill?

The case has fifteen counts in all. Among them:

• The health care reform bill originated in the Senate, not the House of Representatives. Though it has the number “HR 3590,” the bill begins “In the Senate of the United States”.
• The Minimal Coverage Mandate exceeds Congress’ authority under the Commerce Clause.
• The bill raises a “Ready Reserve Corps” whose members will get weapons training. As such it is an army. The problem: it appropriates funds for this army for four years, not the Constitutional two.
• The bill raises a number of taxes that run afoul of one or more clauses of Article I, Section 9.
• The bill inherits several flaws from the Social Security Act, namely its seeming establishment of favored “religious sects or divisions.” Those that started on or before December 31, 1950, get an exemption not available to those that started later.

Could the recusal issue affect other courts?

Yes. Purpura and Laster will move that Justices Elena Kagan and Sonia Sotomayor recuse themselves when (not if) Purpura v. Sebelius goes to the Supreme Court. Representative Lamar Smith (R-TX) called three days ago for the House and Senate Judiciary Committees to investigate Kagan. Smith wants to know whether Kagan lied to the Senate Judiciary Committee about her role in crafting the health care reform bill.

Featured image: the Constitution of the United States. Photo: National Archives.

Related:

• Health care reform bill default motion
• Health care reform bill appeal skirmish
• Commerce, health care, and distortion
• Plaintiffs seek injunction
• Appeal delayed
• Plaintiffs have standing after all
• DOJ wants more time on HCR appeal
• Another appeal
• Hazardous to your health
• Court dismissal