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Elena Kagan Must Recuse Herself from ObamaCare Case

After several federal judges have declared ObamaCare unconstitutional, the Supreme Court has finally decided that it will hear challenges to the health care overhaul law. This could be one of the most closely watched and politically-charged Supreme Court cases in the past few decades. While I hope that the nation’s highest court makes the correct decision regarding ObamaCare, we shouldn’t automatically trust the justices to uphold the Constitution.

We all know that the Constitution grants very few powers to the federal government. Only about thirty enumerated powers are listed throughout the entire document. Our founding document clearly prohibits the federal government from forcing citizens to purchase a product simply because they exist. Almost everything that Congress does is not within bounds of the Constitution yet the Supreme Court rarely ever strikes down a law as unconstitutional. Between the years 1937 to 1995, the Supreme Court did not declare one single law unconstitutional according to the Tenth Amendment Center. This is exactly what Thomas Jefferson feared.

Jefferson warned that if the federal government has a monopoly on determining the extent of its own powers, these powers would continue to grow regardless of separation of powers. This is why James Madison declared that states were “duty bound to resist” any federal law that violated the Constitution. A majority of the states have pushed back against the health care overhaul law. The recent passage of Issue 3 also known as the Ohio Healthcare Freedom Amendment is a win for the states against federal abuse.

The main point is just because ObamaCare is unconstitutional doesn’t mean the Supreme Court will rule it so. Some justices more than others have shown that they are not interested in upholding our founding document. They wrongly see it as a “living document” that can be interpreted as they please based on the political whims of the day. Their dangerous philosophy has essentially rendered the Constitution pointless. As historian Kevin Gutzman says, “those who give us a living Constitution are actually giving us a dead Constitution, since such a thing is completely unable to protect us from the encroachments of government power.”

Supreme Court Justice Elena Kagan made it clear that she sees almost no limits to federal power in her confirmation hearing last summer. She was even unable to answer a question on whether it is constitutional for the federal government to force citizens to eat three vegetables and three fruits every day. Knowing what we are up against, is there anything we can do to help ensure that the Supreme Court makes the right decision? I would say that the best thing we can do is to call on Justice Elena Kagan to recuse herself—abstain from participating from the case—due to a conflict of interest.

Elena Kagan as Solicitor General for the Obama administration claims she was present at “at least one” meeting regarding strategy for the defense of ObamaCare. The Judicial Crisis Network has made the case that her involvement is much more substantial than she is admitting. Emails obtained by Judicial Watch through the Freedom of Information Act reveal that she cheered on the passage of ObamaCare in a number of emails. On March 21, 2010, an email was exchanged between Kagan and then-Senior Counselor for Access Justice Laurence Tribe. Kagan writes “I hear they have the votes!! Simply amazing…” and Tribe responds “So healthcare is basically done! Remarkable.”

Elena Kagan should recuse herself from the case as matter of integrity. She has recused herself from 29 of 82 Supreme Court cases because of her previous work as Solicitor General. The ObamaCare case should be no exception. Section 455 of Title 28 of the United States Code (the Judicial Code) states that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Now, I’m not a lawyer, but I believe that calling the passage of ObamaCare “simply amazing” and using double exclamation points implies a bit (okay, a lot) of partiality.

Let’s hope that the Supreme Court actually stands up for the original intent of the Constitution. Justice Elena Kagan is not a defender of our constitutional rights; she is a partisan cheerleader for ObamaCare. Regardless of what the Supreme Court happens to rule next June, ObamaCare will remain a clear violation of the Constitution and should be immediately repealed for the sake of our health care freedom.

Tim Bos


I'm completely on board with you until the last sentence in the next to last paragraph. I know that you meant to say that Kagan is obviously supportive of ObamaCare, and she is therefore not the least bit impartial. However, you're assertion claims the exact opposite of that reality, and I'm sure it was just an oversight.

Jim Becker

Julie, I'm in agreement with you and to add to it I see the encroachment of the federal government continuing because of States rights (checks & balances) have been lost with the passage of the 17th Amendment. Senators should be appointed by the legislature of each State as it was before the 17th Amendment. An individual has very limited access and no one on one,face to face access to the Senators in his state, but an individual does have that access with the legislators in his community and State. If the legislators appointed the Senators the special interest groups with their large donations would have less influence and the people of the State would have more. Then there would be the checks and balances of power which is the original intent of the Constitution.