November 14, 2011

ObamaCare: Electoral Impact & Kagan Recusal

The Supreme Court’s announcement today that it will review the constitutionality of ObamaCare ensures that the health care law will be one of the biggest issues in next year’s presidential and Congressional elections. Federalism – including the Tenth Amendment and Congress’ enumerated powers – will also be a prominent election issue because the Court’s decision will have even larger implications than the fate of ObamaCare. The decision will answer the momentous and timely question of whether there are any real limits on the federal government’s power over states and individuals.

See here for my recent op-ed in The Hill explaining why ObamaCare and several other cases knocking on the High Court’s door will make this the most politically important Supreme Court term in decades.

There’s no doubt about the magnitude of ObamaCare’s impact on the 2012 elections, but the direction of the impact is not as clear. If the Supreme Court upholds ObamaCare in its entirety, it will be seen as a victory for President Obama and Congressional Democrats, which would likely provide them with some electoral momentum. On the other hand, such a decision by the Court would throw responsibility for reforming ObamaCare entirely on the shoulders of the new Congress and President, thus making it an even bigger election issue. That might be bad news for Democrats given ObamaCare’s continual poor showing in the polls.

Conversely, if the High Court strikes down ObamaCare in its entirety, it would be a victory for Republicans, giving them the electoral momentum, but at the same time largely depriving them of one of their best election issues.

Finally, if the Supreme Court strikes down one or more of the challenged ObamaCare provisions – the individual insurance mandate or the expansion of Medicaid – but leaves much of the statute in effect, it would likely be the worst case for Democrats. Republicans would be able to say “I told you so,” while candidates would be forced to focus on how to repair the shattered statute, with Democrats on the defensive.

As you can see, what outcome political partisans root for in the Supreme Court will depend on whether they are most concerned about ObamaCare or the 2012 elections.

Meanwhile, today’s Supreme Court announcement brought no indication that Justice Elena Kagan will recuse herself from the ObamaCare case, despite being required to do so under federal law. The requirement arises from Kagan’s documented involvement, as U.S. Solicitor General, in the Administration’s preparation for the legal defense of ObamaCare’s constitutionality. Federal law – specifically 28 U.S.C. §455(b)(3) – requires recusal where a judge “has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

We take Kagan at her word that she walled herself off from the defense of ObamaCare after she was nominated to the Supreme Court in May 2010. However, she had already been involved in the defense for several months at that point, as indicated by documents obtained under the Freedom of Information Act (FOIA).

The Obama Administration has been slow and only partially responsive in responding to FOIA requests for documents related to Kagan’s involvement in ObamaCare’s defense, so it is difficult to determine the depth of that involvement. However, the plain text of 28 U.S.C. §455(b)(3) makes it clear that the requirement for recusal applies regardless of her degree of participation.

The Committee for Justice calls again for Justice Kagan to recuse herself from the ObamaCare case, as required by federal law, when it is heard and decided next spring.

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