The Supreme Court’s ruling on the Patient Protection and Affordable Care—aka Obamacare—will be one of the most important in the court’s history.
Not only is the fate of this far-reaching piece of legislation to be decided but the role of the overall federal government is at issue.
A ruling in favor of Obamacare would vastly extend the reach of the federal government into our lives.
Rep. Lamar Smith, a Republican from Texas and chairman of the House Judiciary Committee, says in an oped in today’s Washington Post that he doesn’t know if Justice Elena Kagan, former Solicitor General, should recuse herself. But Smith urges the White House to come clean on Kagan’s possible role in the development of the legislation.
Smith notes that there are calls from interest groups to get both Kagan and Justice Clarence Thomas, whose wife is affiliated with organizations that oppose the law, to stand down from participating in making the ruling.
But concerns about the job or personal views of a justice’s spouse are not the same as concerns that a justice may have been involved in a matter before it reached the high court.
Specifically, Justice Elena Kagan may have played a role in the development and defense of the president’s health-care law during her tenure as U.S. solicitor general. Despite claims from Obama administration officials that Kagan was not involved in the health-care discussions, e-mails released last month indicate that there may be more to the story.
Just as this ruling will have impact beyond the law in question, Kagan’s decision about whether to participate will have profound significance for the prestige of the court.
She should make sure every shred of information that pertains to her work on the legislation is made known.
Since we’re on the subject of the forthcoming Supreme Court deliberations, perhaps this is the moment for me to plug an excellent article by Thomas Miller of the American Enterprise Institute.
In “Handicapping Obamacare’s Day in Court,” Miller sums up the dilemma facing the justices:
At this point, numerous lower court decisions, as well as the framing of the Supreme Court’s order, make it clear that the individual mandate, as designed in this particular law, cannot be defended as a valid exercise of the federal government’s power to tax and spend for the “general welfare.”
That leaves the Court to decide whether any limits remain within its long line of case precedent, which has given wide latitude to Congress whenever it decides to regulate economic activity with some discernable effect on interstate commerce. …
Ironically, both sides have more or less stopped the regular political clock from running while pausing for validation in the courts for their respective absolutist, all-or-nothing stances. On the one hand, a Supreme Court decision in late June that leaves both sides unhappy will provide a larger lesson that we just have to grind our way through contentious, longstanding political conflicts with more political conflict and sustainable compromise that avoids overreaching by transitory majorities.
On the other hand, there is an older vintage of the Constitution in exile that might need to make an encore appearance to remind the latest cast of arrogant policymakers that not everything that is politically possible is constitutionally proper.
This is a ruling that is going to leave people angry, no matter which way it goes.
The White House owes it to us to be able to trust the Court to make this decision.