"...calling on Justice Elena Kagan to disqualify herself in the ObamaCare litigation because of her role, as Solicitor General, in preparing its constitutional defense. These calls have intensified with the release of recent emails. Justice Kagan’s supporters respond that she testified in her confirmation hearings that she had nothing to do with ObamaCare.
First, her phraseology was much more precise. She said she would only recuse herself from any case in which she “officially formally approved something,” or “served as counsel of record” or “played any substantial role.” But the statute requires disqualification if Kagan, as a federal employee (she was the former Solicitor General) “participated” as an “adviser” on a matter, even if she did not give any formal advice. She also must disqualify herself if her impartiality might reasonably be questioned.
In March of 2010, there are a series of emails to or from Kagan; the subject line of all of them is “Health care litigation meeting.” The DOJ refused to disclose these emails because they discuss legal arguments for the “expected [health care] litigation.” If Kagan hermetically sealed herself from discussions on shaping defenses for ObamaCare litigation, why is she repeatedly sending and receiving emails shaping defenses for ObamaCare litigation? The Government refuses to release these emails, on grounds of a litigation privilege, while claiming that it erected such a solid wall around Kagan that she never would send or receive such emails. This wall must have more holes than Swiss cheese. If we can read theses emails, we will learn if the legal theory developed in those meetings is the legal theory that Kagan adopts when she rules on the case.
A week after the president announced her nomination to the Supreme Court, a DOJ press officer emailed the Deputy Solicitor General and asked if Kagan had been involved in the preparations for health care litigation. Notwithstanding these earlier emails, he responded, a minute later: “No she never has been involved in any of it. I've run it for the Office, and have never discussed the issues with her one bit.” A few minutes later, he forwarded that email to Kagan.
One would think, if Kagan’s Deputy was correct, that Kagan would simply say, “of course,” or, perhaps nothing. But that is not what happened. Less than two minutes later, Kagan wrote: “This needs to be coordinated. [the DOJ press officer], you should not say anything about this before talking to me.” What is there to “coordinate”? Why would Kagan suggest that they have to get their stories straight? And why “talk” instead of using emails (which leave a paper trail)?"
"... a 2009 op-ed Romney wrote for USA Today has recently surfaced in which he urged President Obama to adopt his program, including an individual mandate, for his federal healthcare makeover. The Obama administration has claimed it used Romneycare as its model for Obamacare."
His advisors/staff specifically helped the Obama Administration to draft ObamaCare from the RomneyCare model.
Ultimately, the question will hinge on whether the Commerce Clause has any limits. If the federal government can compel a private citizen, under threat of a federally imposed penalty, to engage in a private contract with a private entity (to buy health insurance), is there anything the federal government cannot compel the citizen to do?If Obamacare is upheld, it fundamentally changes the nature of the American social contract. It means the effective end of a government of enumerated powers — i.e., finite, delineated powers beyond which the government may not go, beyond which lies the free realm of the people and their voluntary institutions. The new post-Obamacare dispensation is a central government of unlimited power from which citizen and civil society struggle to carve out and maintain spheres of autonomy...Rarely has one law so exemplified the worst of the Leviathan state — grotesque cost, questionable constitutionality and arbitrary bureaucratic coerciveness.