This spring the U.S. Supreme Court will decide what may well be the case of the century -- the constitutional challenge to Obamacare. But will the case be heard by eight or nine justices?
Before the health care law was even passed, the Department of Justice had been meeting to develop a strategy for defending the law from constitutional attack. Involved in this effort was none other than Elena Kagan, now the newest Obama appointee to the Supreme Court.
See Video at: ObamaCare: Recuse Kagan! - Dick Morris TV Lunch Alert
Federal law requires Supreme Court justices to recuse from a case if they had earlier "participated as counsel" in the case. Justice Kagan did just that when she was Obama's solicitor general, but has never explained why she believes she is nevertheless justified in sitting on the case under this standard.
One simply can't be the coach and referee in the same game. At best, knowing the playbook will color your judgment, and at worst, you'll be on the lookout for chances to give your former team an advantage.
Here are the facts. It took two lawsuits to get "the most transparent administration in history" to release emails detailing Kagan's involvement in the Obamacare defense. Those emails show that, in a highly unusual move, she ordered her staff to become involved in the defense before the law was even passed.
Perhaps this turn of events is explained by the fact that, upon passage of Obamacare, Kagan's reaction to a confidant was "I hear they have the votes, Larry!! Simply amazing."
Possibly most damning is the fact that Kagan received privileged internal strategy about the case. We know this because the Obama administration redacted portions of Kagan's emails under a Freedom of Information Act exemption that specifically prevents the disclosure of government deliberations.
Kagan is prohibited from sharing that privileged information even with her colleagues on the Supreme Court when they in turn deliberate on Obamacare.
In sum, Kagan's direction of the administration's defense, as well as her inclusion in "let's run this by the boss" discussions about the government's strategy, constitute more than enough participation as counsel to require her recusal under the law.
To be fair, as the calls for Kagan's recusal have intensified, some have rushed to her defense, suggesting that she had insulated herself sufficiently from her office's defense of Obamacare.
Her deputy at the Solicitor General's Office, Neal Katyal, has said that she was "walled off from Day One." Why anyone thought Obama's top lawyer had to be walled off of such a monumental case in the first place is revealing in itself.
In any event Katyal apparently breached that wall with impunity by suggesting that she attend Obamacare strategy meetings, by promising to bring her in such meetings "as needed," and by copying her on internal emails discussing defense strategies.
Or perhaps Katyal simply regarded "Day One" as occurring later in the process, such as after the Obamacare challenges were actually filed or after Kagan was put on the short list for a Supreme Court nomination.
But by those times Kagan was already too involved in the government's defense to later sit on the case as a judge. Legally speaking, pre-suit participation in a case still triggers recusal.
The stakes cannot be higher. The Supreme Court will determine whether the federal government has the power to mandate that every American purchase and maintain government-approved insurance from birth until death - all in the name of regulating interstate commerce.
With such a closely divided court, it may all come down to Justice 
Kagan's vote, but her vote is too tainted. To preserve the integrity of our Supreme Court on the most important case of the century, Justice Kagan should recuse.
Carrie Severino is policy director and chief counsel of the Judicial Crisis Network.
By:Carrie Severino | 11/27/11 8:05 PM l Op-Ed Contributor - Washington Examiner
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