Levin: Justice Kagan Should Recuse Herself From Obamacare Case, Too

Patrick Burke
By Patrick Burke | December 13, 2011 | 1:02 PM EST

Mark Levin says that, now that Supreme Court Justice Elena Kagan has recused herself from the Arizona immigration law case, she should do the same with the Obamacare case.

On Monday’s show, while discussing news from earlier that day that Kagan had recused herself from the Supreme Court case regarding the Arizona immigration law, Levin said that Justice Kagan should also recuse herself from the Obamacare case to be heard next year:

“And it looks like Justice Kagan has recused herself, as she should from the Obamacare case…”

Levin cited Kagan’s role of Solicitor General as sufficient grounds for her recusal because of her supposed role in the litigation strategy of the Obama administration:

“[S]he had a role or what’s perceived to be at least a role as Solicitor General of the United States in developing strategies respecting the litigation. That’s it.
Case closed. Out.”

On Friday, Levin discussed in great length a article which revealed e-mails suggesting a more involved role by Kagan in the Justice Department’s Obamacare defense than previously thought:

“Now, it’s simply not credible, that the solicitor general of the United States, put there by Obama, overseeing litigation in this matter would not have given any opinion or advice particularly now that we have an email trail involving the Slaughter rule among other things. That should be enough.”

Internal Justice Department emails sent just days before the House passed Obamacare show that then-Solicitor General Elena Kagan was brought into the loop as DOJ began preparing to respond to an anticipated legal complaint that Mark Levin and the Landmark Legal Foundation were planning to file. against the act if the House used a procedural rule to “deem” the bill passed even if members never directly voted on it.

In one DOJ email, Kagan alerted the chief of DOJ’s Office of Legal Counsel to the constitutional argument that a former U.S. Appeals Court judge was making against the use of this rule. In another, Kagan's subordinate copied her in the discussion of how DOJ should respond to the expected lawsuit.

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