Obamacare Off-Broadway Preview in Atlanta

On Wednesday, the federal 11th Circuit Court of Appeals heard arguments over whether or not to reverse a Florida federal court decision declaring major portions of Obamacare to be unconstitutional. The Florida court decision was important in that it not only made specific findings, but the plaintiffs came from states all over the nation. A Court of Appeals decision in a controversial case is usually just the opening act for the big show in DC at the Supreme Court.

Florida federal court Judge Roger Vinson had found that the Obamacare mandated purchase of health insurance was a bridge too far in the liberal assault on individual rights. Vinson declared the mandate an impermissible perversion of the federal power to regulate interstate commerce in that it required citizens to purchase something rather than merely regulating the interstate sales of a product. And he didn't stop there. He also struck down the provisions granting "discriminatory" Medicare discounts for certain seniors as well as the requirement that parents be allowed to retain their "children" on their family health insurance up to age twenty-six.

So far, three federal judges have found Obamacare constitutional and two have found it unconstitutional. A similar set of pleadings is en route to a Virginia court (two sets, actually, but they are likely to be consolidated into one). Virginia is in a different Circuit, so it might be ruled on by that appeals court separately. But in any event, the Atlanta decision is likely the one which will ultimately drive the whole mess to the Supreme Court. And it doesn't matter which side wins. The loser will appeal. The Supreme Court has seemed to indicate that it wants to hear from a mix of Circuit Courts before hearing the matter, but hear it they will eventually.

The administration will try to stall by asking for a review by the full Circuit while the plaintiffs will try to get the case to the Supreme Court as quickly as possible. Interestingly, all through the debates and passage of Obamacare, and in all the court cases to date, the Obama administration had claimed that the mandate was a "penalty" for non-compliance. For the first time, the administration lawyers argued that it is a tax. As a tax rather than a penalty, there is at least a tenuous connection to the Commerce Clause. But the judges all asked for citations of cases in which such a "tax/mandate" had ever previously been allowed. The government's lawyers were unable to produce a single one.

Lawyers know better than to try to predict how a particular case will go. But often the questioning by the judges is a tip as to which way the case might go. There are two Clinton appointees and one Bush I appointment on the panel hearing the case (the Chief Judge). First, that's not political since the judges are chosen by random lottery. Second, the Clinton appointees are not Obama-type doctrinaire "living constitutionalists." All three judges asked at least one question about where in the Constitution, case law and/or precedent the Obama administration appellants found the authority for the federal government to impose a mandate to make a purchase of any kind.

The names of the lawyers representing the opposing parties is usually unimportant. But in this case, a whole separate problem will be created when the case goes to the Supreme Court. The anti-Obamacare people were represented by former US Solicitor-General Paul Clement. That's interesting, but not particularly relevant. But the federal government was represented by current Acting US Solicitor-General Neal Katyal. That becomes very significant because it directly affects the ethical issue of "recusal" for one of the Supreme Court Justices who will hear the case.

During her term as Solicitor General, current Supreme Court Justice Elena Kagan directly and personally assigned Katyal to fend off, then litigate early challenges to Obamacare. While still acting under Kagan's authority, Katyal litigated two cases in which he defended the constitutionality of Obamacare. Even after Kagan resigned as she became the Obama appointee to the Supreme Court, she continued to give "input" to Katyal on the issue.

There is no hard proof that Kagan personally wrote or influenced Katyal's arguments in the anti-Obamacare cases. But who else does the Assistant Solicitor-General report to if not the Solicitor-General who personally assigned him to the cases? This was not a routine rotational assignment. Kagan went out of her way to appoint and supervise the attorney she felt most capable of defending Obamacare.

Ethical rules which would suggest that Kagan should recuse herself are arcane and complicated. And if she decides to go forward and hear the case, what court can be appealed to? (Answer: there isn't one) Clearly, she is not required to recuse herself. But there's more than enough fact and reasonable inference to expect her to do so. By her own standards, she should do so. She recused herself in a Supreme Court case where her connections to the case were far less palpable. In that case, Kagan had merely been the dean of the Harvard Law School, but felt she needed to recuse herself because one of the litigants who filed an amicus curiae brief was Walter Dellinger, who was head of the Harvard Supreme Court and Appellate Clinic when Kagan was the dean.

All things considered, Kagan should recuse herself in the Obamacare case when it arrives at the high court bench. Her connections to the purveyors and litigators are simply too apparent to be dismissed as inconsequential. The rule is that the justice must avoid the appearance of impropriety or personal prejudice where the appearance is a reasonable conclusion. It doesn't have to be right, or proven beyond a reasonable doubt--merely a reasonable inference. She should listen to her own advice and follow her own precedent.