Calls for Kagan Recusal Intensify


By Hadley Heath

Recently, calls for Justice Kagan to recuse herself from the ObamaCare case have intensified.  

Although the evidence was already clear, the latest controversy surrounds Kagan's participation, as Solicitor General, in Golden Gate Restaurant Association v. San Francisco.  In this case, plaintiffs challenges a local health ordinance.  When this case reached the Supreme Court level for consideration, the Office of the Solicitor General filed an amicus brief that involved legal issues related to the Affordable Care Act and included pages of discussion about it.

For the Heritage Foundation, Hans von Spakovsky writes:

The amicus brief contains an extensive discussion of the Obamacare legislation. In fact, the OSG’s arguments on the PPACA take up at least six pages—almost half of the 13 pages of “Discussion” in the brief. The OSG informs the court that the Department of Labor decided not to “proceed with a proposed regulation” related to the issues in the Golden Gate case “because of the passage” of the PPACA. This means that there had to have been detailed discussions between the OSG’s Office and the Labor Department over the legislation and its effect on this case. That is confirmed by an email dated March 22, 2010, from Edwin Kneedler, the Deputy SG, to Kagan in which he states that the Labor Department had been requested to produce an insert for the brief “identifying the provisions of the health care bill (as it will be reconciled) that are relevant to the preemption issue in this case.”

The amicus brief summarizes for the Supreme Court the “numerous provisions” of the new legislation. The OSG argues that the court should not take the Golden Gate appeal because:

"...the intervening enactment of comprehensive federal health care legislation has dramatically changed the landscape governing payment for health care, substantially reducing the importance of the question whether ERISA preempts state or local requirements and also giving rise to additional legal issues that have not been addressed by the federal Departments responsible for implementing the new legislation or by the courts."

According to the OSG’s brief, the “Court’s review of the ERISA preemption issue is not warranted at this time.”

Neal Katyal, the Acting Solicitor General, filed the brief.  But in a memo from May 13, 2010, Katyal listed this case second on a list of cases in which Kagan "substantially participated."  She exchanged private emails with the counsel drafting the brief, and internal emails reveal she discussed the case several times.

The standard for recusal is that if a judge has participated as counsel in a case, they cannot rule on it. Furthermore, federal law requires that a “justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

The Independent Women's Voice has launched a petition calling for her recusal at  

More reading on this topic:

ObamaCare Litigation: More "Golden" Reasons Why Justic Kagan May Need to Recuse Herself

Debate Heats Up Over Whether Kagan Should Participate in Supreme Court's Health Care Law Ruling

Kagan Defended ObamaCare as Solicitor General


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