Elena Kagan Needs to Recuse Herself from Health-Care Case, Says Author of Virginia Law

By Terence P. Jeffrey | March 16, 2011 | 4:03 PM EDT

Virginia Del. Bob Marshall, R.-Prince William County. (AP Photo/Steve Helber)

(CNSNews.com) - Virginia Del. Bob Marshall, the state legislator who sponsored the law that forbids any government from forcing individuals in Virginia to buy health insurance, says that Supreme Court Justice Elena Kagan should recuse herself from judging Virginia’s suit challenging the constitutionality of Obamacare because she was President Obama’s solicitor general when the suit was filed and when the Obama administration first took steps to oppose it.

“She should recuse herself before she makes a decision on this case,” Marshall told CNSNews.com’s Online With Terry Jeffrey.

Marshall, a Republican who represents Prince William County, said he believed the very fact that Kagan was solicitor general in the Obama Justice Department at the time that department was taking a position in opposition to Virginia’s suit disqualifies her from judging the case as a Supreme Court justice. In Marshall’s view, it does not matter whether Kagan ever discussed the case with her subordinates in the Justice Department.

“It was the policy … of the Obama Administration, of which she was the solicitor general, to defend their policy, that our claim was not constitutional,” said Marshall. “She should recuse herself at that point whether or not she discussed it with the lower-down attorneys.”

Marshall said that by serving as solicitor general in the Justice Department while it was opposing Virginia’s suit, Kagan “was implicated in an opposition to our statute.”

Asked if he anticipated that Kagan would recuse herself, Marshall said, “I hope she comes under severe criticism if she doesn’t.”

In early 2010, Virginia’s state government enacted the Virginia Health Care Freedom Act, which Marshall sponsored by in the Virginia House of Delegates. The law, which was signed by Virginia Gov. Bob McDonnell before President Obama signed the federal health care law, says an individual in Virginia cannot be forced to buy health insurance—and thus directly contradicts the federal individual mandate later enacted in Obamacare.

Virginia’s lawsuit against Obamacare is in part designed to protect the Virginia Health Care Freedom Act against Obamacare, predicated on the belief that the 10th Amendment to the U.S. Constitution limits the federal government to those powers actually delegated to it by the Constitution and leaves to the states and the people those powers that are not.