ObamaCare: Thomas & Kagan

Sometime next year, probably around March, the United States Supreme Court will hear the challenge to the so-called Patients Affordable Care Act, better known by most as ObamaCare. The Court will be reviewing three separate cases on two specific aspects of the law: the Constitutionality of the individual mandate and the expansion of Medicaid. Of the two, the mandate is probably the more significant because it addresses what is arguably the greatest expansion of federal powers since the Constitution itself was adopted. It could even be said that it is a decision that will either affirm or bring to an end the central Constitutional concept of the federal government as one of strictly limited and enumerated powers.

I am not usually in the habit of quoting the opinion pages of the Washington Post, but in this case columnist Jennifer Rubin has it right when she says, "This is easily the most consequential issue to come before the Supreme Court in decades. If the individual mandate is struck down, the Supreme Court would accept view of the Constitution and federal power championed by conservative legal scholars and advocates, namely that the federal government is limited in powers and may not use the Commerce Clause and/or the Necessary and Proper Clause as carte blanche to control every aspect of Americans’ lives. If the challenge to ObamaCare is rebuffed, advocates of the "living Constitution" … will have established that there is virtually nothing the federal government can’t do apart from those actions specifically barred by the Constitution.

Ilya Shapiro, a CATO scholar and advocate for repeal, puts it this way: "The Supreme Court has set the stage for the most significant case since Roe v. Wade. Indeed, this litigation implicates the future of the Republic as Roe never did. On both the individual-mandate and Medicaid-coercion issues, the Court will decide whether the Constitution’s structure—federalism and enumeration of powers—is judicially enforceable.

Because of this historic significance, and because on so many other recent cases that deal with the scope and reach of the federal government the Court has ruled five to four, exactly who sits on this case may well be dispositive.
Those of a generally conservative Constitutional bent who want to see the mandate overturned are arguing that Justice Elena Kagan should recuse herself because, when she was Solicitor General for the Obama administration before being appointed to the Supreme Court, the department she oversaw had argued that the mandate was Constitutional, even if she herself may not have personally made the argument.

Those of a more liberal bent are saying that Justice Thomas should recuse himself, because his wife, Ginni Thomas, has been an outspoken opponent of the health care law. Several news articles have been written about these two opposing claims of prejudice as if they were like offsetting penalties in football. Yet it doesn’t take much depth of understanding to point out how different the two recusal arguments are. In the case of Kagan, it’s a question of her own bias. Our friends at CNS News made a Freedom of Information Act request for emails from Kagan’s office that revealed that she said she "definitely" – her word – wanted her office involved in defending the law’s Constitutionality in two specific state challenges to the mandate. Federal law states that a federal judge must recuse him or herself whenever he or she has, quote, "served in governmental employment and in such capacity … expressed an opinion concerning the merits of the particular case in controversy." That sure sounds to me like it describes Kagan’s involvement.

On the other hand, the argument for Justice Thomas’s recusal rests entirely on his wife’s involvement in opposing the health care law and its individual mandate. When you read the fine print of the judicial code of ethics where it refers to a spouse’s activities that could require the recusal of a judge, it’s clear that it refers to substantial financial interest – such as large ownership of stock in a corporation whose price could be affected by a judicial ruling. That’s clearly not the case here. Doesn’t it also strike you as ironic, at the very least, that those who are saying that Clarence Thomas must recuse himself because of Ginni Thomas’ activities with a couple of non-profits would never say that Bill Clinton’s international business and speaking engagements should not in any way disqualify Hillary Clinton from being able to impartially serve as Secretary of State?

The recusal argument that precedes the Constitutional argument must be seen for what it is: one relevant charge of bias in the case of Kagan, and one irrelevant charge of bias in the case of Clarence Thomas. Don’t fall into the trap of thinking that they’re equal, and thus offsetting.