Kurt Nimmo
March 26, 2012

Now that Obama’s unconstitutional monstrosity – the Patient Protection and Affordable Care Act, aka Obamacare – has reached the Supreme Court, it is time for Justice Elena Kagan to recuse herself.

As solicitor general of the United States, Kagan headed up an office that formulated the Obama administration’s legal defense of the legislation.

She is obliged under Section 455(b)(3) of Title 28 of the U.S. Code to recuse herself from cases where a justice has “served in governmental employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.”

In February, Senator Jeff Sessions cited United States v. Gipson, a decision made by the Tenth Circuit that held judges who have “previously taken a part, albeit small, in the investigation, preparation, or prosecution of a case” must disqualify themselves.

“Previously undisclosed e-mails that the Justice Department has released pursuant to court order demonstrate Kagan’s direct involvement in the administration’s defense of the president’s health law from the very beginning,” writes Sessions. “In January 2010, she assigned her chief and only political deputy, Neal Katyal, to the matter — the legal equivalent of a firm’s senior partner delegating work to a junior associate. That same month Katyal wrote in an e-mail to the associate attorney general’s office that ‘Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues.’ These actions alone constitute personal participation in the preparation of the case, and that is all §455(b)(3) requires to trigger mandatory recusal.”

“Justice Kagan’s involvement in the preparation of the government’s defense of the health-care law began at least as early as January 2010, four months before her nomination and two months before the bill became law. That she would not follow the same course in the health-care case is dubious. These facts require recusal,” Sessions concludes.

During confirmation before the Senate Judiciary Committee, Kagan promised in a written questionnaire that she would follow the “letter and spirit” of 28 U.S.C. 455.

Predictably, the establishment media has ignored this issue. Only one organization, Freedom Watch, has gone to court to get a ruling to disqualify Kagan.

“Larry Klayman, the founder of Freedom Watch and before that Judicial Watch, has been the most ardent critic of the Court’s avoidance of this issue.  Never before has a justice, who championed legislation during its passage and crafted a legal defense for it, been able to preside over its validity.  In no other court of the United States would this be acceptable,” a Freedom Watch press release states.

According to Klayman, Chief Justice Roberts has claimed that the Supreme Court is not bound to the same ethic standards as lower courts. “This serves to delegitimize not only this decision but the Supreme Court as an institution.,” Klayman adds. “It is now clear that the Supreme Court considers itself above the law, does not represent the American people and much less the rule of law.  This is a formula for revolution.”

Article III, Section 1 of the Constitution states that Supreme Court judges “shall hold their offices during good behavior.” Under normal circumstances, Kagan’s failure to recuse herself from this landmark constitutional case would be considered bad behavior, to say the least. Because of this, Kagan must be impeached and removed from the High Court.

Articles of impeachment must be presented to the House of Representatives immediately. If the House votes in favor of impeachment, she must go to trial in the Senate.

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