Should Justice Kagan Recuse Herself From Obamacare Case? [VIDEO]

Patrick Howley Political Reporter
Font Size:

Oral arguments begin at the Supreme Court Wednesday in the King v. Burwell case, which will determine the constitutionality of Obamacare’s federal subsidies.

The Obamacare law is pretty clear that people can only get subsidies from state exchanges. As Grace-Marie Turner pointed out, the law says subsidies apply to “an Exchange established by the State under [section] 1311of the Patient Protection and Affordable Care Act.”

And Obamacare architect Jonathan Gruber said, “If you’re a state, and you don’t set up an exchange, that means your citizens don’t get their tax credits.”


The Obama administration, meanwhile, is pretty much arguing, “Come on. Just, you know, come on.”

If federal subsidies get shot down in the Supreme Court’s decision, expected by June, millions will lose subsidies and, therefore, lose insurance. Obamacare will be damaged. Republicans are trying to come up with alternative replacement plans for the subsidies so they don’t get blamed for all the people losing insurance, but Obama would still have to sign off on any plan they come up with.

All in all, I wouldn’t bet money on the Supreme Court ruling against the Obama administration. The “Come on” argument seems like it will probably win out, doesn’t it? Isn’t that the way these things usually go?

Here’s an interesting point made by political consultant Liz Mair and sent over to The Daily Caller in an email: Supreme Court Justice Elena Kagan was the Obama administration’s solicitor general when Obamacare was passed.

“Public records from that period indicate she instructed a deputy in her office to craft a defense to legal challenges to the law. Almost certainly, Kagan is not coming to this discussion without preconceived notions and an open mind,” Mair wrote.

Should Justice Kagan recuse herself? Does it matter?


Follow Patrick on Twitter