Dahlia Lithwick opines that, "calls for Elena Kagan to recuse herself from the Obamacare case are ridiculous." As I had noted in the previous post by Monroe Freedman, I don't believe that Justice Kagan's email provided grounds for recusal. But there is a second asserted ground, namely, that Justice Kagan allegedly participated on the matter while she was Solicitor General. The debate on that issue (which, in my view, Lithwick mostly sidesteps with strawman arguments) asks whether Kagan "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 in controversy." (28 U.S.C. §455(b)(3))
Is vote counting really the best we can do at this point regarding interprestation of the Commerce Clause?
The market for healthcare and insurance is obviously an interstate market - therefore Congress can obviously regulate it. In regulating things, governemnts can compel actions. For example, Congress can force you get a license before you buy and sell firearms, and they can force you to pay for that license. They can also force you to comply with all kinds of environmental laws, which often involve compelled purchases of good and services to monitor and constrain emissions of toxic chemicals. The individual mandate is no different from these things. Furthermore, Congress can tax you, and spend that money buying you things you might not want, like milimeter wave scanners at the airport. If they can tax and spend, why can't they just have you give your money directly to the vendor?
The ultimate irony is that if conservatives are successful at convincing the court otherwise, and the PPACA is declared unconstitutional, the only alternative option will be single payer healthcare. Conservatives are looking to sink the moderate compromise here. Presumably they think that the not so moderate alternative won't be forthcoming. Apparently conservatives live in some fucking fantasy land in which people who are dying are going to back down on this issue.
The reality is that the United States, just like every other sophisticated nation on that planet, is going to create reasonable access to health care for everyone in its society. The question is not whether, its how.
RE: Debate continues on recusals of Justices Thomas, Scalia, and Kagan (and no knock-out blows have yet been thrown)