Health care reform bill recusal motion 2

The Constitution is not dead
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Two New Jersey men behind the most comprehensive legal challenge to the health care reform bill are raising the stakes: they want two Justices to recuse themselves.

Status of health care reform bill challenges

The case of Florida ex rel. Bondi et al. v. HHS et al. gets all the media attention today. The Supreme Court has scheduled a full day of oral argument on that case in March. There they will hear questions of standing, and the related question of ripeness. (A case is ripe when the damage involved is happening today or is about to happen.) They will also hear questions of constitutionality (but only of the minimal coverage mandate and of mandates on the States) and severability.

Purpura v. Sebelius (Docket No. 11-7275) raises nineteen Constitutional and statutory issues in fifteen counts. Nick Purpura and Donald R. Laster Jr also ask the Court to decide whether lower courts were too quick to dismiss their claims for lack of standing. They also are asking whether the government, in its own haste to brush the case aside, might have forfeited on key counts.

One of those counts, Count Six, is the reason for today’s motion.

A question of citizenship and authority

Barack Obama: was he authorized to sign the health care reform bill?

Barack H. Obama. Photo: Pete Souza, January 13, 2009

Count Six, in essence, says that the man now holding office as President, Barack H. Obama, is not and was never authorized to sign the health care reform bill, or any bill, into law. The reason: his father was a British colonial subject at the time of his birth. And therefore, according to multiple existing Supreme Court precedents that the Court has never reversed, Obama is not a natural-born citizen. Therefore he is not the President of the United States.

The problem: if he is not President, then he had no authority to appoint Justices of the Supreme Court, or any lower court. That means, for example, that Judges Joseph Greenaway and Thomas Vanaskie, who now sit on the Third Circuit Court of Appeals, should be out of jobs. But this also applies to Justices Elena Kagan and Sonia Sotomayor.

Today, Purpura and Laster filed a motion to the Supreme Court, asking that Justices Kagan and Sotomayor recuse themselves from any consideration of whether to grant certiorari to them (that is, to “take the case”), or, if the Court grants certiorari, to decide the case. (The Court accepted the petition on November 9 and gave the government thirty calendar days to respond.)

Title 28, United States Code, Section 455, disqualifies any judge having a financial interest in the outcome of the case. It also disqualifies a judge who has advised a party to a case in any way.

Purpura and Laster say in their motion that no financial stake can be any more basic than owing one’s job to a party. That is the case with Kagan and Sotomayor.

The original plaintiffs in the Florida case are now moving to disqualify Justice Kagan because she closely advised the government (as Solicitor General) during the health care reform bill debate. (And also because she cheered, in writing, the prospects for the health care reform bill passing Congress.) Purpura, in an interview with CNAV, scoffed at such technicalities. “Why play games with whether she advised them or not, when you need only realize that, if Obama is not the President, she’s out of a job?” he said.

Purpura and Laster also want to apply this standard to Judges Greenaway and Vanaskie in the Third Circuit. If the Supreme Court remands the case to the Third Circuit, this would force a new three-judge panel to re-examine their appeal.

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

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