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Justice Kagan sitting for Obamacare would be an affront to our Republic

The U.S. Supreme Court has agreed to consider the constitutionality of Barack Obama’s Affordable Care Act of 2010, also known as Obamacare.  The point of contention for 26 states, is that individuals will be forced to buy health insurance against their will. 

Justice Elena Kagan, was Obama’s Solicitor General at the time the bill passed.  She is said to have had exposure to the bill and began preparing its legal defense – that was her job description.  Recently, an e-mail by Kagan revealed her commenting, “I hear they have the votes, simply amazing,” in reference to the bill’s passage. 

House Republicans are currently trying to obtain documents from the administration under FOIA to discover just how deep Kagan’s involvement goes. 

28 USC 455, clearly states that a Supreme Court justice MUST recuse herself from “any proceeding in which [her] impartiality might reasonably be questioned.”  And that she must be recused when she has “expressed an opinion concerning the merits of the particular case in controversy” while she “served in governmental employment.

This woman was part of the team that pushed Obamacare through and for her to now go onto the bench and rule on the case would be an affront to the Republic and our rule of law.  The rules of professional responsibility governing attorney ethics would not allow an attorney so caught up in the legislation to then sit on the bench in this case.  Yet the Obama administration will likely try. 

If Kagan sits on the bench this will be the most shocking and unethical move by any politician since the Governor of Illinois tried to sell Obama’s senate seat to Jesse Jackson Jr.  The un-fathom-ability of it rises to that level of shock. 

Kagan MUST recuse herself.  The conflict of interest in these circumstances is too great.  In the interest of her country and our rule of law she must put aside her partisan desire to see the case upheld.  If Obama had nominated someone else (say maybe, a JUDGE) to the bench instead of one of his staff, he wouldn’t have this problem.  But he went with HIS IN HOUSE COUNSEL.

Liberals are predictably are already trying to build the case for her to remain on the bench for the case by citing Clarence Thomas’ opposition to the bill, yet Thomas has never commented on the case and there is absolutely no evidence that Thomas has a personal interest in the case whatsoever.  Obviously, Justice Thomas will sit for the case unless he is in violation of a SCOTUS conflict rule.

As it stands, Kagan MAY NOT SIT FOR THIS case.  The partisanship in D.C. which has already reached the stratosphere, would begin reaching other planets if this was allowed to stand.  This is unacceptable.  Kagan must recuse herself and President Obama, Minority leader Pelosi and Harry Reid should call on Kagan to step aside on this one.  All 9 Republican presidential candidates better begin discussing this on the campaign trail immediately.  This could be one of the greatest overreaches of my lifetime. 

How can separation of powers work if the branches are merged?  The Court should be a check on the other branches not a safety net for them.  Kagan should clear the air by the end of this week that she will be recusing herself on this case, otherwise, the Congress may have a good case for impeachment on its hands.

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