Health care reform bill recusal issues

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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., plaintiff against the health care reform bill

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.

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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

46 Responses to Health care reform bill recusal issues

  1. Kegan’s involvement was specific to defending the “deeming” action to pass bills, not specific to the PPACA. She did no official work on the PPACA and the only unofficial work was on a legal issue unrelated to the current challenges against it. It seems like the only reason you have for her to recuse herself is that you don’t want her to sit on the court.

    I say this as someone who has opposed the PPACA since the beginning, with the exception of the parts about the electronic medical records, because seriously that should have happened two decades ago.

    • Terry A. Hurlbut says:

      Just remember that those electronic medical records are now subject to unreasonable and unwarranted search and seizure. That’s one of the fifteen counts.

      • I agree completely that that it a violation of our rights. However I think that that is a legal problem that needs a legal remedy. The paper records could be searched illegally too, it just took a bit longer (not much trouble when you are ruining someones life, a big pain if you’re battling a medical condition).

  2. Jon says:

    “in other news”…case rejected.

    Sounds like the last hurrah for Mr. Pupura’s ’15 counts’.

    Michelle Obama 2016!

    • Terry A. Hurlbut says:

      That’s not what I said, and I have heard no such report. It said that the respondent/government decided not to offer a response to the Supreme Court when the Court gave them a month to respond. It said nothing about whether the Court granted cert. or not.

      • Arthur B. says:

        It is the practice of the Supreme Court to hold a conference to determine whether certiorari will be granted. If they are interested in considering a specific case, they will signal their interest by requesting a response by the opposing party so that both sides’ arguments can be taken into account.

        The Solicitor General, by stating that he does not plan to file a response unless so requested, is suggesting that he does not expect SCOTUS to have any interest in the case. The Court still has an opportunity to ask him to do so, but if they do not, it’s a pretty safe bet that this is a dead case.

  3. Frances Black says:

    “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.)”

    Title 28 Section 455 says nothing about them being off the bench for the reasons you state (ineligibilty of Obama). That’s just wishful thinking. There is no support for that position.

    In fact, there’s no support for his ineligibilty, but that’s a different discussion which has been discussed ad nauseum.

    • Terry A. Hurlbut says:

      That title says that if they have direct financial skin in the game, they are not allowed to referee the game. And no interest could be any more up-close-and-personal than being out-of-a-job if the case breaks a certain way.

      • but they wouldn’t be off the bench, they’ve been confirmed by congress.

        • Terry A. Hurlbut says:

          If Obama be found not to be President, that confirmation is null and void.

          • Arthur B. says:

            I believe that to be a misconception. Do you have any legal citations to support it?

          • Terry A. Hurlbut says:

            Maybe not, but nor have you any legal citations to prove me wrong. This situation is unprecedented in American constitutional law.

          • 1Lishell says:

            Look up the de facto officer doctrine. Here are some cites.

            The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient. Norton v. Shelby County, 118 U.S. 425, 440 (1886). “The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.” 63A Am. Jur. 2d, Public Officers and Employees § 578, pp. 1080-1081 (1984) (footnote omitted). The doctrine has been relied upon by this Court in several cases involving challenges by criminal defendants to the authority of a judge who participated in some part of the proceedings leading to their conviction and sentence. Ryder v. United States (94-431), 515 U.S. 177 (1995).

          • Terry A. Hurlbut says:

            Just one problem that you’re all missing: challenges to Obama’s eligibility go clear back to the 2008 primary season. First to file such a challenge: Hillary Clinton.

            In the Ryder case, petitioner Ryder had failed to challenge the appointments of two civilian judges in a timely fashion. He waited until after the court-martial board convicted him. He should have issued that challenge at the outset, even if it meant taking exception after exception.

      • Frances Black says:

        All due respect, you need to re-read and reassess what “direct financial interest” is.

        This very concept of law was tested by Philip Berg in the D.C. courts, Berg v Obama, his qui tam action and it was held that drawing one’s salary from the government and performing one’s job commensurate with that a) is not a direct financial interest, as the law contemplates b) nor is there a conflict from that salary.

        [that is not a direct quote but I can supply it if necessary.]

        The defacto officers doctrine, a doctrine much older than the U.S. and upheld over time has already been explained to you so I don’t rehash that here.

        That also applies to the military who questioned Obama’s authority as the commander in chief. Even if he were found to be ineligible at any point in the future, his orders remain lawful, and are at this time lawful.

        Mr. Lakin affirmed under oath during his court martial that he knew his orders were lawful at the time he disobeyed them and he chose to disobey them regardless.

  4. Arthur B. says:

    Well, actually I do. Here’s a start:

    “The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.”

    — from http://definitions.uslegal.com/d/de-facto-officer/

    • Terry A. Hurlbut says:

      Does this supersede the Constitution?

      • Arthur B. says:

        The de facto officer doctrine is well recognized and accepted in the law, and has been for a long time. It has never been declared unconstitutional.

        That’s why I asked you if you had a citation to support your point. If you do, I’d be interested to know about it.

      • The constitution doesn’t say directly the opposite of the Defacto officer doctrine, so it’s not really a matter of superseding the constitution, rather it’s a part of the judicial framework in which the constitution is supposed to be considered, according to the constitution. It does supersede the someone bizarre conclusion to the contrary that all of Obama’s decisions become null and void if he is found ineligible to serve as president.

        • Terry A. Hurlbut says:

          Two words that you’re overlooking: “timely challenge.” Obama’s eligibility has been under continuous challenge, from one party or another, since the 2008 primary season.

          • Arthur B. says:

            No one is overlooking the phrase “timely challenge.” That was an issue in the Ryder case, but does not appear in any general statement of the de facto officer doctrine. I repeat my request that you quote a legal precedent in which the actions of a governmental officer were rendered null and void due to a later ruling of ineligibility.

            While you’re at it, would you please substantiate your statement, “First to file such a[n Obama eligibility] challenge: Hillary Clinton”? I understand that an early lawsuit was filed by Philip Berg, who described himself as a Clinton supporter, but I am not aware of any challenge placed by Clinton or her campaign.

  5. I don’t think you understand how confirmation works. You seem to have invented an alternative version of confirmation which doesn’t bear any resemblence to reality. The confirmation is like a trial, once it is complete that is legal certification of whatever the trial found. If Obama were found to be ineligible to be president he would be impeached, but in the time inbetween his oath of office and his impeachment he would have been president. Impeaching him and throwing him out of office would not undo anything that he did as president any more than him terming out regularly. Having been confirmed as the supreme court judges Sotomayor and Kegan have a congressional stamp of approval that they meet all the requirements, their paperwork has been filled out and filed, the appointment is final.

    You seem to immagine some chain reaction wiping out all of Obama’s official actions, but I assure you that you really really really don’t want that. If Obama being found intelligible nullified all he had done then literally thousands of US soldiers would be guilty (literally guilty) of murder. All of the US finances would be ruined. All of the states would be bankrupt too. If the laws that were passed under Obama were suddenly unpassed then we would have legal disaster. Because of that if his actions were nullified we would have to make exceptions and allow some to stand as if they had been passed by a president, and among those that stand would be everything he did that was confirmed by a legitimate body, because that would be based on the authority of that confirming body, which means that the appointments to the court would stick around.

    • Terry A. Hurlbut says:

      That is precisely why several US soldiers have challenged Obama’s status as Commander-in-Chief and therefore his authority to order their deployment to Afghanistan or Iraq. They fear precisely the scenario you describe, redounding to their discredit.

      • Arthur B. says:

        Yes, you are correct. Some of the military personnel, such as LTC Lakin, began with a premise very much like yours.

        But, as the court decisions made clear, they had nothing to fear from such a scenario, because their military orders were entirely legal completely independent of whether the President turned out to be ineligible. LTC Lakin served several month in Leavenworth and sacrificed a retirement package worth about 2 million dollars because he staked his future on his misunderstanding of the law.

      • That doesn’t make sense. “I’m pressing charges against him, because, if he is found guilty, then bad things will happen to me” doesn’t exactly strike me as the best plan. We don’t let self destructive people or the mentally challenged serve in the military.

  6. Rob says:

    FEDERAL MANDATORY PURCHASE OF HEALTH CARE INSURANCE
    IS NOT CONSTITUTIONAL
    THE FOUNDING FATHERS DID NOT WRITE THE FOLLOWING “COMMERCE CLAUSE” IN
    THE U. S. CONSTITUTION
    “THE CONGRESS SHALL HAVE POWER TO MANDATE COMMERCE WITH FOREIGN NATIONS, AND AMONG THE SEVERAL STATES, AND WITH THE INDIAN TRIBES;”
    BUT
    THE FOUNDING FATHERS DID WRITE THIS IN
    ARTICLE 1, SECTION 8, CLAUSE 3 OF
    THE U. S. CONSTITUTION
    “THE CONGRESS SHALL HAVE POWER TO REGULATE COMMERCE WITH FOREIGN NATIONS, AND AMONG THE SEVERAL STATES, AND WITH THE INDIAN TRIBE;”
    THE FOUNDING FATHERS GAVE CONGRESS THE POWER TO “REGULATE NOT MANDATE COMMERCE”
    THE PROOF IS NOT ONLY IN THE CONSTITUTION BUT IT IS ALSO IN THE DEBATES, IN THE FEDERAL CONVENTION OF AUGUST 29, 1787
    AT THE WEB SITE OF constitution.org/dfc/dfc_0829.htm
    BY JAMES MADISON; Art. VII Sect. 6 by ye.
    Mr. Pinkney moved to postpone the Report in favor of the following proposition – “That no act of the Legislature for the purpose of regulating the commerce , ( not mandating the commerce) of the U-S. with foreign powers, or among the several States, shall be passed without the assent of two thirds of the members of each House.” He remarked that there were five distinct commercial interests. 1. the fisheries & W. India trade. 2. a free trade. 3.Wheat & flour. 4. Tobo. 5. Rice& Indigo. (The Founding Father said regulating commerce over and over again. Not once did they say mandating commerce). Also go to the web site of, constitution.org/lrev/bork-troy.htm

    WERE THE FOUNDING FATHERS SO STUPID THAT THEY MANDATED COMMERCE AND MADE OUR FOREPARENTS BUY FOREIGN NATIONS PRODUCTS, FISHERIES, WHEAT, FLOUR, TOBO, RICE, INDIGO AND OTHER PRODUCTS. THEY DID NOT GIVE CONGRESS THE POWER TO MANDATE COMMERCE.
    Give ten or more copies to other Americans

    • I’m afraid that I fail to see the relevance that your assessment or the constitutionality has to the question at issue here. It could be completely unconstitutional in every way shape or form and Kegan would still be eligible to adjudicate on the matter, stipulating otherwise would be itself unconstitutional.

    • JamesF says:

      The Founding Fathers did mandate purchase in the Miltia Act of 1792.

      That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder;

      Of course this deals with national defence, an interest of the federal government, but none the less congress mandating the purchase of something is not unprecedented.

      I still don’t know why they didn’t package the mandate as a tax, as in anyone without health-insurance say be tax $750 per year or 1% of their income or something along those lines, that would have been fully within congresses power (although a fixed amount such as $750 could be construed as a poll tax).

      • Terry A. Hurlbut says:

        Maybe because “no capitation or other direct tax shall be laid without apportionment among the several States.” Article 1, Section 9, Clause 4. In any event, Purpura v. Sebelius has both angles covered.

        • JamesF says:

          The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

          The 16th Amendment.

          • Terry A. Hurlbut says:

            That’s the one exception. And it’s also an exception that I would like to see removed.

          • Well if it is a tax then it is covered by the exception in the 16th amendment, if it is not a tax then it is not a violation of the section you quoted.

            The fact that you would like to see that amendment undone has no bearing on the constitutionality of the law; just like the constitutionality of the law has no bearing on Kegan’s duty to rule on the question.

          • JamesF says:

            So you concede that a 1% taxation on the income of people that don’t have health insurance would be within congresses powers?

          • Terry A. Hurlbut says:

            Actually, I do not. And why not? Because it violates another clause of Article 1, Section 9, to wit, Clause 2:

            No bill of attainder or ex post facto law shall be passed.

            Any special tax on one class of people, as distinct from another class, which tax furthermore depends on someone’s decision to purchase, or not to purchase, a private good or service, constitutes discrimination, deprivation of property without due process of law, and a special sentence after trial-by-legislature. These are the evils that the phrase bill of attainder covers.

          • This isn’t remotely a bill of attainder (which is where congress passes a law declaring someone guilty of a crime, here at worst congress declared an act a crime, which is completely different)and there is nothing ex post about it.

          • Terry A. Hurlbut says:

            Congress is declaring that those who fail to purchase health-care insurance shall be guilty of a misdemeanor, at least, and upon demonstration thereof—by the IRS, not by a court of law—they shall be fined, i.e., taxed to a tune to which others shall not be taxed.

          • Congress also passes a law that all people in the class of not paying their taxes are guilty of tax evasion, that doesn’t make it a bill of attainder. A bill of attainder is about skipping the executive and judicial branches all together, if you don’t like the fine from the executive branch you can appeal to the legal one as the law is written, congress has nothing to do with your punishment.

            A bill of attainder would be like the one that Congress passed condemning ACORN after the pimp videos came out, where congress canceled their contracts with out having given them a trial.

            Please Terry, do a little more reading instead of grasping at straws like that. If this bill is unconstitutional (instead of just a really bad idea and a **** *** for the insurance industry) then it is because it exercises a power that congress does not have, not because it conflicts with some section on what congress specifically cannot do.

          • Terry A. Hurlbut says:

            As a matter of fact, this bill is unconstitutional because, among other things: it originated in the Senate, not the House; it overextends the Commerce Clause; it raises and supports a new army (the Ready Reserve Corps, the members of which receive weapons training) with a four-year appropriation; it subjects medical records to unreasonable search and seizure; it makes slaves of people by making them buy health insurance; it discriminates among races (the tanning bed tax) and religions (the grandfather clauses borrowed from Social Security); and for a whole host of other reasons.

          • Arguing that it is a tax and that it originated in the senate (a technicality held over from before we directly elected senators, but a real thing) is the least misguided of those arguments.

            Remember Terry, I’m not saying that the bill is good, I’m saying to stop throwing everything against the wall to see what sticks. It makes you look desperate when you claim that it’s racist for targeting tanning bed and that it’s slavery for mandating a purchase.

            Also this bill does not lead to search and seizure of medical records, it dictates the way in which medical records are stored (which was already dictated before this bill passed). The law enforcement agencies at various levels cannot look at them with out warrant except for through other laws like the PATRIOT act and the NDAA.

          • Terry A. Hurlbut says:

            Actually, you have to throw everything against the wall to see what sticks. That is what the rules of every court in the land require. Any claim that you do not assert at the beginning of a case, you may not assert on appeal, at any stage of that appeal. That is why Purpura and Laster assert every claim they can possibly make.

            Does that tanning bed tax discriminate against white people, who alone would use such devices? You tell me. If it’s there, you run with it.

            And the bill does so subject medical records to unreasonable and unwarranted search and seizure. Didn’t you read the part that says that all medical records shall be subject to inspection by the inspector general, when he determines that the inspection of such records are necessary to investigate possible fraud, and that he need not get a warrant?

            And how do you interpret a phrase, in a bill, that says that “there shall be no judicial review” of such-and-such?

            Haven’t you ever been in court? I have. It was one of the least pleasant experiences of my entire life, because my involvement was as defendant, not plaintiff. But I have been there. I know how lawyers think, because I needed representation. And I know that any plaintiff will put everything but the kitchen sink into his complaint. Very often he will assert several different violations for the same action, so that if one argument fails, he can try another. He must assert all such arguments from the beginning, or else he’d have to start all over again upon dismissal of the complaint.

  7. Arthur B. says:

    Mr. Hurlbut, I’d like to thank you for your gentlemanly treatment of contrary views. That sort of thing is rare these days, and I want you to know it is appreciated.

  8. JamesF says:

    Congress’s not congresses.

  9. […] Health care reform bill challenge […]

  10. Frances Black says:

    The case was not on the list of certs granted which came out Friday.

  11. […] Recusal issues […]

  12. […] Recusal issues […]

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