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Should Kagan and/or Thomas Recuse from SCOTUS Obamacare decision?

  • Apple
    The Supreme Court agreed today to hear the Obamacare case that was brought to the court after having been opposed by more than half of the state's attorney's general.

    Two of the justices are said to need to possibly recuse themselves from the case due to conflict of interests.

    Justice Kagan worked as President Barack Huseien Obama's solicitor general to get Obamacare passed just before being nominated/appointed to the SCOTUS.

    Justice Thomas is married to a woman who has worked with the Heritage Foundation which has opposed Obamacare.

    I think Justice Kagan definitely needs to recuse herself from the case because she actively worked with the current administration to get the bill passed into law.

    I do not think Justice Thomas needs to recuse himself. Every Justice has family members who have opinions on Obamacare.

    It would not surprise me that both, or neither, will be recused. With politics in America the way it is today, having one be recused without the other is a virtual impossibility.
  • QuakerOats
    Kagan must recuse herself.

    Obamacare: Is the Deck Stacked on Supreme Court?
    Next year the U.S. Supreme Court will render one of the most important rulings of our lifetimes when it decides whether the government can force Americans to buy health insurance or face a fine. I’m glad the high court has agreed to hear this challenge, but I’m concerned that Supreme Court Justice Elena Kagan will not be impartial.
    You may remember that Justice Kagan was President Obama’s Solicitor General, the attorney who represents the federal government in cases that come before the Supreme Court. In recent months it has become clear that she played an active role as the Obama Administration was preparing its legal defense for health care reform. She cheered its passage, designated her top deputy to oversee its defense, and both received and responded to emails about Obamacare litigation.
    In Congress, I have led the call for the release of any documents that would shed light further light on this crucial matter. However, the Justice Department has called our requests for information “unseemly,” and refused to cooperate.
    They have insisted that SG Kagan was “walled off” from Obamacare deliberations and decisions. If that’s the case, then they should tell us how it was done. Was there a gatekeeper? What were the instructions? How did they prevent emails from going to her? These are easy questions to answer. Their silence is self-condemning.
    Ultimately it will be up to Justice Kagan to decide whether or not she will recuse herself from a case involving legislation that she already actively supported. The law is clear. A federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” That’s the threshold. Is it reasonable to look at Justice Kagan’s previous involvement with the Obama Administration and health care reform and have reasonable questions about her impartiality? I think the evidence is clearly pointing what way.
    What do you think? I’m asking you that question in a poll on my website: Do you believe there is already reasonable evidence to question Justice Kagan’s impartiality on Obamacare, and should Congress continue to press for more documents on this matter? Please go to my website and register your preference.
    Ultimately, I believe that we still need a full repeal of the unconstitutional health care reform law, with market-based solutions put in its place. I will continue to work hard toward that end on Capitol Hill.

    Sincerely,


    JOHN FLEMING, M.D.
    Member of Congress

    P.S. If you’d like more information, please take a minute to visit my website at www.fleming.house.gov or follow me on Facebook at www.facebook.com/repjohnfleming or on Twitter at www.twitter.com/repfleming
  • fish82
    The case for Kagan recusing is way stronger than Thomas. That said, I'm willing to be they both hear the case. It doesn't matter amyway...it's a virtual guarantee that the mandate goes down 5-4.
  • jhay78
    Kagan- yes.

    Thomas- no way. Last time I checked, his wife is an independent human being, and not a member of the court.
  • sleeper
    Kagan will be excused. Obamacare is guaranteed to fail.
  • Devils Advocate
    Predictable....
  • BoatShoes
    fish82;983661 wrote: It doesn't matter amyway...it's a virtual guarantee that the mandate goes down 5-4.
    You are wrong my friend. Most Con law experts certainly don't see it this way. This is only true if you think the court is composed of complete partisan hacks willing to be totally inconsistent with previous articulations for political reasons. Justice Scalia wrote in the Gonzales v. Raich that a purely local activity could be regulated under the commerce clause if that particular type of activity in the aggregate substantially affects interstate commerce. Chief Justice Roberts has intimated that Congress does not go beyond its commerce power if it adequately states its case as to why it is regulating interstate commerce which it did for the PPAC Act (and didn't do in Lopez).

    The court very well may strike it down but it is in no way a "virtual guarantee" which you keep saying incorrectly.

    As to Recusal, I've always thought the standard that a magistrate ought to disqualify herself in the event that impartiality might reasonably be questioned was very low. Based upon the argument that people think Thomas and Kagan ought to be recused it seems to me that reasonable people are suggesting that they might be impartial. If we're to adhere to that standard, I think they both ought to abstain.
  • fish82
    BoatShoes;983850 wrote:You are wrong my friend. Most Con law experts certainly don't see it this way. This is only true if you think the court is composed of complete partisan hacks willing to be totally inconsistent with previous articulations for political reasons. Justice Scalia wrote in the Gonzales v. Raich that a purely local activity could be regulated under the commerce clause if that particular type of activity in the aggregate substantially affects interstate commerce. Chief Justice Roberts has intimated that Congress does not go beyond its commerce power if it adequately states its case as to why it is regulating interstate commerce which it did for the PPAC Act (and didn't do in Lopez).

    The court very well may strike it down but it is in no way a "virtual guarantee" which you keep saying incorrectly.

    As to Recusal, I've always thought the standard that a magistrate ought to disqualify herself in the event that impartiality might reasonably be questioned was very low. Based upon the argument that people think Thomas and Kagan ought to be recused it seems to me that reasonable people are suggesting that they might be impartial. If we're to adhere to that standard, I think they both ought to abstain.
    Sure thing, Professor. :rolleyes:

    I've got a crisp benjamin burning a hole in my pocket that I'm willing to put up on it. You in?
  • queencitybuckeye
    BoatShoes;983850 wrote:You are wrong my friend. Most Con law experts certainly don't see it this way. This is only true if you think the court is composed of complete partisan hacks willing to be totally inconsistent with previous articulations for political reasons. Justice Scalia wrote in the Gonzales v. Raich that a purely local activity could be regulated under the commerce clause if that particular type of activity in the aggregate substantially affects interstate commerce. Chief Justice Roberts has intimated that Congress does not go beyond its commerce power if it adequately states its case as to why it is regulating interstate commerce which it did for the PPAC Act (and didn't do in Lopez).

    The court very well may strike it down but it is in no way a "virtual guarantee" which you keep saying incorrectly.

    As to Recusal, I've always thought the standard that a magistrate ought to disqualify herself in the event that impartiality might reasonably be questioned was very low. Based upon the argument that people think Thomas and Kagan ought to be recused it seems to me that reasonable people are suggesting that they might be impartial. If we're to adhere to that standard, I think they both ought to abstain.

    I'll read any citation you wish to provide that indicates 1) who these experts are and what qualifies them as experts, and 2) that most of them are settled on one particular side.
  • BoatShoes
    queencitybuckeye;983911 wrote:I'll read any citation you wish to provide that indicates 1) who these experts are and what qualifies them as experts, and 2) that most of them are settled on one particular side.
    I never said that there was a consensus as to whether or not the mandate is constitutional. What I said was professors from the likes of Lawrence Tribe (liberal) and Randy Barnett (hardcore libertarian), while having their own feelings on the matter have in no way suggested that it's a slam dunk 5-4 against PPAC.
  • queencitybuckeye
    BoatShoes;983940 wrote:I never said that there was a consensus as to whether or not the mandate is constitutional. What I said was professors from the likes of Lawrence Tribe (liberal) and Randy Barnett (hardcore libertarian), while having their own feelings on the matter have in no way suggested that it's a slam dunk 5-4 against PPAC.
    You used the word "most", which has a specific meaning. Are you related to Footwedge?
  • QuakerOats
    The emails between Kagan and Tribe are quite enough to have her step aside, let alone her work as solicitor and other inner workings.
  • stlouiedipalma
    Neither Justice recuses and it is upheld by a 7-2 vote.
  • majorspark
    BoatShoes;983850 wrote:The court very well may strike it down but it is in no way a "virtual guarantee" which you keep saying incorrectly.


    I am going to agree with you on this one. I would guess that the current makeup of the court would lean to overturning the individual "mandate". But as you noted there is case law out there that would support a different conclusion. Not to mention Supreme Court precedent.

    Look no further than Wickard v. Filburn. The federal congress via the commerce clause can regulate a nationally traded commodity (in this case wheat). A local farmer produced wheat (in excess of congressional limits) meant for personal consumption on his own property for his own personal use. In the hard times of the depression Filburn was ordered by the federal government to destroy his excess wheat production. Filburn sought legal recourse. The SCOTUS ruled Filburn had to get in the game.

    The individual mandate really is no different. By staying out of the insurance game you are affecting interstate commerce (in this case health insurance). Exactly what the SCOTUS ruled in Wickard v. Filburn. Of course I think the decision is ludicrous. A federal court ruling on limiting federal power? I am not willing to risk one of my benjamins.
  • fish82
    stlouiedipalma;989028 wrote:Neither Justice recuses and it is upheld by a 7-2 vote.
    Where are you getting 7 votes?
  • fish82
    majorspark;993418 wrote:

    I am going to agree with you on this one. I would guess that the current makeup of the court would lean to overturning the individual "mandate". But as you noted there is case law out there that would support a different conclusion. Not to mention Supreme Court precedent.

    Look no further than Wickard v. Filburn. The federal congress via the commerce clause can regulate a nationally traded commodity (in this case wheat). A local farmer produced wheat (in excess of congressional limits) meant for personal consumption on his own property for his own personal use. In the hard times of the depression Filburn was ordered by the federal government to destroy his excess wheat production. Filburn sought legal recourse. The SCOTUS ruled Filburn had to get in the game.

    The individual mandate really is no different. By staying out of the insurance game you are affecting interstate commerce (in this case health insurance). Exactly what the SCOTUS ruled in Wickard v. Filburn. Of course I think the decision is ludicrous. A federal court ruling on limiting federal power? I am not willing to risk one of my benjamins.
    Seriously man...can you honestly see Scalia or Roberts citing that case as a precedent? I don't.
  • majorspark
    fish82;994558 wrote:Seriously man...can you honestly see Scalia or Roberts citing that case as a precedent? I don't.
    No but there is 5 others I do not trust.
  • stlouiedipalma
    I get 7 votes from the seven Justices who will apply law and not their ideological opinion. Remember, the Court isn't about what we want, it isn't about rewarding the party and President who appointed them, it is about the law and the Constitution. At the end of the day I really believe that the law will prevail. Not the law as I wish it were, not the law of public opinion, but the law as the ever-evolving Constitution defines it to be.
  • majorspark
    stlouiedipalma;1002245 wrote:At the end of the day I really believe that the law will prevail. Not the law as I wish it were, not the law of public opinion, but the law as the ever-evolving Constitution defines it to be.
    The constitution evolves through the amendment process.
  • queencitybuckeye
    stlouiedipalma;1002245 wrote:I get 7 votes from the seven Justices who will apply law and not their ideological opinion. Remember, the Court isn't about what we want, it isn't about rewarding the party and President who appointed them, it is about the law and the Constitution. At the end of the day I really believe that the law will prevail. Not the law as I wish it were, not the law of public opinion, but the law as the ever-evolving Constitution defines it to be.
    The last time the constitution evolved was 1992.
  • jmog
    stlouiedipalma;1002245 wrote:I get 7 votes from the seven Justices who will apply law and not their ideological opinion. Remember, the Court isn't about what we want, it isn't about rewarding the party and President who appointed them, it is about the law and the Constitution. At the end of the day I really believe that the law will prevail. Not the law as I wish it were, not the law of public opinion, but the law as the ever-evolving Constitution defines it to be.
    If that were true then the mandate would die 9-0, which will not happen so your utopia doesn't exist.
  • BGFalcons82
    Here's an interesting take on the ObamaKare legislation and Constitutionality - http://dailycaller.com/2011/12/04/president-obamas-top-10-constitutional-violations/

    Items 1, 2, 3 & 10 relate to ObamaKare's un-Constitution debate. I'm interested in majorspark's opinion on the article.
  • stlouiedipalma
    majorspark;1002275 wrote:The constitution evolves through the amendment process.
    Actually it evolves with every decision handed down by the Court. I don't think the FF envisioned many of the decisions the Court brought in recent years, therefore I would say the Constitution has evolved from what it was orginally designed to be.
  • stlouiedipalma
    BGFalcons82;1003044 wrote:Here's an interesting take on the ObamaKare legislation and Constitutionality - http://dailycaller.com/2011/12/04/president-obamas-top-10-constitutional-violations/

    Items 1, 2, 3 & 10 relate to ObamaKare's un-Constitution debate. I'm interested in majorspark's opinion on the article.
    Every argument I've see about the individual mandate comes with the fear talk that, if upheld, it will allow Congress to mandate other things and force citizens to do and buy things they normally wouldn't. To me, that is just what I described it as, "fear talk". I believe that this kind of talk only panders to the lowest common denominator in our society. If you can't argue the merits, scare 'em.
  • fish82
    stlouiedipalma;1006071 wrote:Every argument I've see about the individual mandate comes with the fear talk that, if upheld, it will allow Congress to mandate other things and force citizens to do and buy things they normally wouldn't. To me, that is just what I described it as, "fear talk". I believe that this kind of talk only panders to the lowest common denominator in our society. If you can't argue the merits, scare 'em.
    That's exactly what the individual mandate already proposes to do. It's forcing people to by something they normally wouldn't. We don't need to "argue the merits..." you people are already doing it for us. ;)