Justice Elena Kagan should recuse herself from any case against the health care reform bill, as she did in an immigration case, and for the same reasons.

Kagan’s immigration recusal

Before she became a Justice of the Supreme Court, Elena Kagan was the Solicitor General of the United States. As such she has a bias in favor of the government in any case by or against the government that began while she so served. In 2010 the government filed the case of US v. Arizona, saying that Arizona’s SB 1070 (the law that orders Arizona state and local police to enforce US immigration law in some contexts) is unconstitutional. Elena Kagan was Solicitor General during that time. On that ground alone, Justice Kagan recused herself from the case, as she announced yesterday. From Atlantic Wire:

Before becoming a justice in August 2010 she helped defend the president’s position against Arizona’s laws, filing, for example, a brief in May 2010 against a 2007 Arizona law that penalized businesses that hired illegal immigrants. That got congressional Republicans riled up during her confirmation hirings last year, as Fox News reported, and today she decided to avoid a mini-controversy by recusing herself. Unfortunately for liberals worried about such recusals whittling away the court’s liberal block, Kagan’s gig as solicitor general could be following her for a while.

Indeed.

Why a health care reform bill recusal is in order

Donald R. Laster Jr, co-plaintiff against the health care reform bill. Photo: self

On November 10, 2011, the Supreme Court officially granted certiorari to a petition by twenty-seven States (and other individual plaintiffs) to consider their case against the health care reform bill. The day before, the Court accepted and docketed an even more comprehensive case, Purpura v. Sebelius. It challenges the health care reform bill on fifteen counts that allege nineteen separate violations of the Constitution and existing statutes.

Nick Purpura and Donald R. Laster Jr, the lead plaintiffs in that case, immediately moved that Kagan and her fellow Justice, Sonia Sotomayor, both recuse themselves. The grounds: one of the fifteen counts says that Obama was never President, and so was not qualified to sign the health care reform bill into law. The problem: he would not be qualified to appoint Justices of the Supreme Court, either. So Kagan and Sotomayor will be off the bench if Purpura and Laster prevail. (Title 28, United States Code, Section 455.)

Other commentators say that Kagan at least ought to recuse herself, because her being part of the government during the health care reform bill debate would give her a bias. Her defenders maintain that just being Solicitor General isn’t enough. She recused herself from Arizona because some of the briefs in that case bear her signature. This, the defenders say, is not true of the Florida case or any other health care reform bill case.

But this report at CNSnews gives the lie to that defense. Kagan seems to have done more than to say how “amazing” it was that “we have the votes.” (Who’s we? Kagan was Solicitor General, not counsel to any House or Senate committee.) Her name appears in an internal Justice Department e-mail describing how the government would have to defend itself in a likely legal challenge. Specifically: Mark Levin, head of the Landmark Legal Foundation, threatened to sue to block the health care reform bill if the House passed a rule that “deemed” the health care reform bill passed. Kagan received an e-mail asking her to take part in legal strategy against Levin, should he sue. (Levin did draft a complaint, but seems never to have filed it.) Later, Kagan wrote to her colleagues about a line of reasoning by a former US appellate judge against such a “deeming” rule.

Four months later, Republicans on the Senate Judiciary Committee asked her in writing whether she had taken part in any strategy to move or defend the health care reform bill. Her answer: No. The obvious question: was that a lie?

Even without those e-mails, if she did not take part in any strategy sessions for advancing or defending the health care reform bill, then (as Governor Chris Christie of New Jersey might ask): Whisky-tang0-hotel did the government pay her to do?

CNAV reached Laster for comment. He said that Kagan must recuse herself from health care reform bill cases for the same reason that she recused herself from the Arizona case: because she was in the government at the time.

In other news, the government waived its right to respond to Purpura and Laster’s certiorari petition. On the deadline date for a response, the government sent a terse letter (embedded below) declining to respond unless the Court asked them to.

Related:

• Recusal motion 2
• Two cases
• Press release
• Challenge details
• Supreme challenge
• Privacy violations
• Setback
• Opposition brief
• Revised motion
• Legal confusion
• Frustration
• More motions
• Recusal motion
• Default motion
• 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

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