Posts Tagged Obamacare

Obamacare in the ICU

The Hill reported this morning that Congressional Republicans are near a deal on a bill to keep some Obamacare subsidies in place should the Supreme Court rule against the administration King v. Burwell.  While this will no doubt be condemned by the usual suspects as proving the party’s insincerity in wanting to repeal the unpopular health care law, it makes sense for both policy and political reasons.

Polls show that while Obamacare itself is increasingly unpopular, and has been unpopular for the whole of its existence, they also show that people don’t particularly want an adverse decision in King v. Burwell.  But such a decision in Burwell would almost certainly spell the end of Obamacare, as the states with federal exchanges would lose their subsidies, collapsing the rickety system that Obamacare put in place.

How to resolve these apparently conflicting sentiments?

I think the answer is that people dislike uncertainty, chaos, and drama as much as they dislike Obamacare itself.  And while losing the subsidies would certainly collapse Obamacare, how it would collapse and how it would effect people on the way down is far from clear.  This isn’t a situation where the whole health care system simply reverts to the status quo ante, people’s rates come back down, and the exchanges go away.

Instead, some states would continue to get subsidies, others wouldn’t, and the executive would scramble around in vain trying to prop up the structure.  Nobody would know what the rules are, or what they would be tomorrow.  This would be true not only for consumers, but for doctors, hospitals, and insurers as well.  In short, for at least a while, the health insurance market would simply cease to function in any rational way.  The human cost of that chaos would be swift and severe.

What the Republicans are proposing to do is extend the subsidies temporarily until the system can be transitioned away from Obamacare.  This will prevent the immediate chaos, and will also possibly having the effect of reassuring that Court that it’s safe to rule against the administration.

Obama will fight this tooth and nail, simultaneously creating the drama while blaming the Republicans for it, in a repeat of the shutdown exercise from October 2013.  In this they will, as always, have the slavish cooperation of the press.  But the alternative – letting the administration assume the role of hero, even as people find themselves unable to obtain insurance or case – is far worse, and, as mentioned above, may be too much for the Court to swallow.

Even if the “temporary” period extends into the next administration, it would give a Republican president time to work with the Congress to pull together his own plan.

All this is only true, of course, if the actual intent is to repeal O-care and start moving toward more market-based solutions.  If it really is just an excuse to put off decisions and lose the momentum of the mid-term elections, then the condemnation will be deserved.


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Contraception Mandate the Latest Battle in a Long Fight

I mean a long fight.

I’ve been reading Norman Cantor’s Medieval Lives, a short book advertising itself as character sketches of a few important Middle Age figures.  In reality, it’s a densely-packed but highly-readable study of the interplay among religious, social, cultural, and political factors in the development of medieval civilization.  By spacing the biographies a generation or a century apart, Cantor makes it possible to trace the evolution and influence of ideas over time.

One sketch is of the first Chancellor of Oxford and inventor of the modern scientific method, Robert Grosseteste.  Grosseteste was also a fierce defender of Church privileges and the rights of ecclesiastical courts.

Before that, though, he tangled with Henry III over the exclusive right of ecclesiastical courts to try clerics.  Few students at Oxford were there to enter the priesthood, but because the University was under Church control, they were required to nominally be members of a monastic order.  As a result, when they got out of hand, as students often would, Grosseteste would routinely write the requisite letter to the common law courts testifying that they were members of the clergy, exempting them from civil jurisprudence and permitting them to be tried by the much more lenient church courts.  The traditional conflict between town and gown thus took on overtones of a larger dispute – the extent of domain of civil society over the Church.

Eventually, Grosseteste would set the tone for his collaborators in the Franciscan Order to support Simon de Montfort in his rebellion against the crown.  And we’re all familiar with the English crown’s resistance to papal duties, and Henry VIII’s financial duress leading him to separate from Rome and confiscate monastic property.  But even in 1253 or so, this tension was manifesting itself in a very specific, very legal, jurisdictional dispute.

To that extent, it looks a lot like the current disputes over the Obamacare contraception mandate – how much room for private or institutional religious conscience is there in a secular civil society?  It also demonstrates how much ground has been lost in that fight, and why Orthodox Jews are rushing to make common cause with a historic adversary and recent friend.

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Obamacare – When Lawlessness Under the Law Just Isn’t Enough

The Washington Post reports this morning that 10 Democratic Senators – including both Colorado Senators – have asked the Obama Administration to extend the open enrollment period for new insurance under Obamacare.  Their request stems from the well-publicized problems with the rollout of the insurance exchange websites, the primary mechanism for enrolling in Obamacare and purchasing new insurance, as required by the individual mandate.  The letter reads, in part:

Given the existing problems with and other state-run marketplace websites that depend on the federally-administered website, we urge you to consider extending open enrollment beyond the current end date of March 31, 2014.  Extending this period will give consumers critical time in which to become familiar with the website and choose a plan that is best for them. Individuals should not be penalized for lack of coverage if they are unable to purchase health insurance due to technical problems.

While this may sound like a good idea, it likely won’t work without a delay in the individual mandate (See Solution #7), and is almost certainly illegal under Section 1311 of the law:

The three-month open-enrollment period isn’t statutory; instead, the ACA directs the Secretary to establish an “initial open enrollment” period. Normally she’d have the discretion to tinker with that as necessary. But the statute also requires her to establish that initial period by “not later than July 1, 2012.” Well, she’s blown through that already — and the provision appears to preclude her from rethinking the determination now. For years after 2014, the statute’s quite clear that she’s got discretion to set annual enrollment periods. But that broad discretion exists only “for calendar years after the initial enrollment period.” That reinforces the suggestion that she can’t rethink the open-enrollment period now.

Apparently, a 2700-page law that’s generated 11000 pages of regulations, includes almost unlimited waiver capacity for the President’s friends, excludes all manner of people responsible for passing and implementing it, and even permits the executive to ignore whole sections of it, still didn’t provide enough flexibility after the election.  Now, Democratic Senators who are staring political mortality in the face are encouraging the HHS Secretary – and by extension, the President – to just ignore the law altogether to help get them out of this mess.

Either Senators Udall and Bennet knew this was illegal when they signed the letter, or they didn’t.  Either way, this amounts to an abdication of responsibility of elected representatives.

If they did know, they’re encouraging not merely this Administration’s habit of arbitrary rule and lawlessness within the law, but actual black-letter lawlessness.  If they didn’t know, it’s a testament to the dangers of voting on bills you couldn’t have read, much less understood, that hand over wholesale lawmaking authority to another branch of government.  The problem with the latter is that it becomes a habit, and little by little, and then all at once, you find yourself running for an office that doesn’t matter at all, while the real power has coalesced into a single executive and an unelected civil service.

How about this.  Since Senators Udall and Bennet don’t seem interested in governing, how about elect someone who is?

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The Healthcare Exchanges – A Failure of Leadership

As the launchpad explosion of the Obamacare Healthcare exchanges continues to play out, the risk builds of putting the blame on the programmers.  This would be a mistake, and I don’t say this out of some sense of fraternal protectiveness for the developers.

The blame here lies squarely on leadership.

Notice that I don’t say management.  I say leadership, in particular, the political leadership.

It’s true that the code isn’t very good.  In fact, it would be fair to say that the piece of the code we’ve been able to see – mostly the javascript – is lousy with bugs and poor coding practices.  And it’s also true that Barack Obama and Kathleen Sebelius didn’t write the code or manage its development.  But they are responsible for the overall environment in which that code was written, including the timeline and the expectations.

They were so committed to the October 1 launch date for the entire system that they didn’t leave enough time for proper development and testing.

It’s quite clear that the development team simply wasn’t given the time it needed to do the job.  By some reports, top-level decision-makers were so slow in approving requests that certain key functionality had about ten months in development.  That’s simply not enough time for a large, complex system that involves a lot of cross-communication with other systems.

What’s also not clear unless you’ve worked in software development for a while is that such large systems are developed with a lot of back-and-forth between the pieces.  Data that needed may not be available at a certain point in the process; you may find out later on that you want to keep users from entering certain kinds of data in combination, and so forth.  A lot of this only becomes clear once development is well underway, and UI developers – the guys who create and program the User Interface that you see – are usually at the tail end of the process.  This often gives them the least amount of time to do their work.  Since it’s clear from the sorts of error messages we’re seeing that even the underlying middle-tier and database code still isn’t ready, it’s clear why the user interface keeps breaking.

As mentioned above, the political leadership, evidently fearing political fallout from any delay whatsoever, has decided to act like Soviet leadership facing a poor harvest.  (Was there every any other kind?)  Instead of facing reality, and preparing people for that reality, they resorted to a number of strategies.

In such situations, it’s almost impossible to make up for that by throwing more people and resources at it.  Design and development can only bear so many chefs; the complexity isn’t in the small pieces of the code that need to be written, but in the overall picture of how the various systems fit together, and the business rules that need to be enforced at each step.  Adding more people to the design process isn’t going to get the work done any more quickly.  And just adding more developers to the coding process doesn’t solve that problem at all.  In fact, it can make it worse, as different coding styles begin to conflict with each other.

And yet, that’s just what the administration seems to have done, with an initial price tag of $100 million ballooning to over $630 million as of this writing.  When they asked how things were coming, they were told, “not well.”  And when they asked if more resources would help, and were told, “yes,” they wrote a bigger check.  They may not even have asked the second question, and the contractors may have said yes in order to get a bigger check.  And no doubt the contractors will be hauled in front of a Congressional committee to tell this story.  The point is, that it’s possible to imagine a scenario where Washington reacted as Washington always has – write a bigger check – and such a reaction was doomed to complicate the failure, not ameliorate it.

Their public reaction to the failure has be equally Soviet.  They first blame circumstances beyond their control – for the Russians, it was the weather; for this crew, it was server load.  In neither case was that factor beyond normal.  And yet they stuck with it for days after it became clear.

And now, we’re being told that “it’s getting better every day.”

Here’s the secret: it’s not.  What’s happening is that the developers and designers are now rushing to meet another hard deadline – December 31, when people will, by law, have to have signed up for health insurance, or risk fines from the IRS.  The scenario they’re desperate to avoid is one where someone can’t sign up, files his taxes, has his refund garnished by the IRS to enforce the penalty, and files a class-action lawsuit in the middle of election season to remind everyone of last year’s Hindenburg.

The development team still isn’t getting the time it needs to do this right, and in continuing to rush to rebuild a system that already exists, it’s only going to make things worse.  It may succeed in hiding some of the more public failures, but the back-system stuff is going to be held together with chewing gum and baling wire, and is going to be ripe for hackers and routine breakages.

As I said before, just be glad that nobody’s actual care is depending on this thing.  Yet.

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Healthcare Exchanges – Why and How They Failed

This post originally appeared at PJ Media Lifestyle, (“No Good Excuses Exist for the Failure of Obamacare’s Expensive Website“).

By now, it’s hard to decide if the launch failure of the Obamacare exchange websites isn’t funny anymore, or just keeps getting funnier.

Sites went down — including the individual state sites for states that are running their own exchanges. When people weren’t getting “due to an extraordinarily high volume of calls” errors, they were getting 404 Not Found messages, and pages were finding new and creative ways of erroring out. Even Wednesday afternoon, I was getting server errors just trying to finish the account creation process on the California site.

Almost as quickly as the train wreck itself unfolded, so did the explanations for it evolve. First, both President Obama and then Press Secretary Jay Carney claimed with straight faces that the failures were a result of the massive interest in the exchanges. Then, others claimed that these were normal rollout errors that occur with all large, complex systems. Finally, as the engineers rolled the platform back to the hangar for retooling, there was no hiding the fact that this was indeed a software failure, not just a set of normal launch “glitches” (to use the press’s word du jour).

The exchanges’ bad day brought to mind a number of other high-profile website failures, including the Romney campaign’s spectacular white elephant of a killer whale, Orca.

I’ve been in web development for most of my professional career. I’ve participated in successful launches, and launches that needed to be rolled back and fixed. I’ve spent very long days dealing with one error after another, and equally long, uneventful days waiting for the deluge that mercifully never came.

It’s always easy to criticize someone else’s failures, and with my luck, tomorrow the QA guys will rain down trouble tickets on my head like nobody’s business. Nevertheless, it remains inescapably true that while there were reasons this happened, they weren’t good reasons, and could have been avoided. Given three years and hundreds of millions of dollars for development, they should have.

Here’s why, and how.

How Web Systems Work

First, a very simplified description of how large, commercial websites are put together nowadays. They basically have three layers of servers – 1) the web layer, which talks to you, the user; 2) the database layer, where the data is stored; and 3) middle-tier layers, which figure out what questions they need to ask the database, and what they need to tell the database, in order for the front-end that you see to work properly.

Each layer consists of many servers. You may be talking to Web Server 1 for a little bit, and then switch over to talk to Web Server 2. And Web Server 1 may send your first request to Middle Tier 1, and your next request to Middle Tier 5. This lets them answer many more questions at once, and talk to many users at once. It’s how Google is able to get results back to literally millions of simultaneous requests almost instantaneously.

These layers have traffic cops (called “routers”) to make sure that no one computer is trying to handle too many questions at once. Other traffic managers keep track of who you are and where you are on the site, so you don’t have to keep starting over.

There are even multiple databases. Data that change a lot (this is called “volatile”), like information about you, or your orders, or billing information, may only be stored once (and backed up regularly). But information that doesn’t change very often, like plan pricing and terms, may be stored in more than one database, to make it faster and easier to get to.

Web systems have used this basic architecture for over a decade now, and launching large, complex sites is now less art and more science.

What Can Go Wrong

Of course, no technology is foolproof, and large, complex websites do fail.

First, users are unpredictable. There’s a saying that you can make something foolproof, but you can’t make it damn-foolproof. People are ingenious in the ways they will misuse something that you put in front of them, and programmers are always complaining about users “doing it wrong.” Of course, it’s not the users who are “doing it wrong,” it’s the programmers who didn’t anticipate their doing it that way.

Second, servers will fail, network connections will fail, routers will fail. Sometimes this just happens, and there’s not much you can do about it, except hope that whatever’s left can handle the load, while you work to get the servers back up.

Sometimes, the load really is too large for the servers’ performance limits and number of servers. Web servers can only handle so many questions per second; the same is true for middle-tier and database servers. This is what happened to the Colorado Rockies in 2007, when seemingly all of Colorado tried to buy World Series tickets at once. The traffic jam brought the website to its knees, and people had to wait a day for the engineers to rework it so that wouldn’t happen again.

And sometimes, programmers just mess up. The database isn’t designed right, and it either loses information or takes too long to answer questions. The middle tier doesn’t ask the database the right questions, or fails to store what the customer needs stored. The web server can ask for information that isn’t there, not keep track of the where you are in the site, show you stuff you didn’t ask for, or let you choose things that don’t make sense in combination.

And the layers can send the wrong information to each other, or misread the information that gets sent to them by other layers.

How You Keep Things From Going Wrong




Of course, programmers are responsible for testing their own code as far as possible. But programmers are usually the worst people to test their own code. They know where all the bodies are buried, and only the most disciplined are likely to test things they know are likely to break. After all, they’ve fixed it before, and are heartily sick of making sure that the date field doesn’t bomb when someone enters 11//1994, instead of 1/1/1994.

There are QA testers, who make sure that things work as advertised. They’re given a list of expected behaviors, and run through the site, making sure that the it does the things the programmers say it will do. More importantly, they run through the site, deliberately making mistakes, to be sure that the site doesn’t break.

There’s beta testing, which basically is a larger group of people who aren’t given any specific instruction. They’re the ones most likely to imitate actual users, since ideally, they have no preconceptions of how the site is supposed to behave, and where it might break.

There’s load testing, which simulates a huge number of hits, all at once, to make sure that the servers don’t buckle and fold like a cheap suit when everyone tries to buy that cool toy all at the same time.

What Went Wrong

From the evidence, it’s clear that the Obamacare exchange servers saw errors of all different kinds. They weren’t prepared for the load, even though this was never very heavy. California reported about 600,000 unique visitors, and Colorado reported about 55,000 unique visitors.

There were screen captures of database errors, not because the data was bad, but because the structure that holds the data was misdesigned.

There were 404 errors, which are totally design errors, meaning that the web sever was trying to get to a page that didn’t exist. (This led to the best hashtag of the day, #404care.)

There were non-descript server errors like the one I got from the California server.

There were user-interface errors. At about 10:00 AM, Colorado suspended new accounts on its site (it’s one of the ones using its own site, not the main exchange site), and didn’t get around to allowing new accounts again until 3:00 PM. At that point, the “New Account” button sent you to the login page for existing accounts. If you chose to enter your childhood phone number for a secret question, it wouldn’t take it, no matter what format (certainly not the format it used when asking for your current phone number).

This is why I say it was clear that this wasn’t just one of those things. The volume of inquiries wasn’t high by large-system standards, and the rest of the errors were in the control of the programmers.

These were design and execution errors, pure and simple. They were all catchable, with proper beta and load testing.

What Could Have Been Done

Test. Test. Test.

If you’re going to have a big, splashy rollout of a controversial government service that half the country is rooting against anyway, you need to test it until it’s bulletproof.

Because failures are often ambiguous from the user side, it’s hard to tell exactly where a lot of these errors originated from. It’s certainly true that the data — involving as it does multiple insurance companies, with multiple plans, for different pricings based on location and number of people covered — is incredibly complicated, and that some states didn’t have final price and deductible information available.

As a programmer, I can tell you with certainty that simply logging into a system shouldn’t produce an error.

And with three years and tens of millions per site at the ready, this was inexcusable.

It didn’t have to be that way. Instead of announcing October 1 as the date that Obamacare would save the world, they could have had a series of smaller rollouts, opening up various portions of the registration process at, say, monthly intervals.

In effect, ask the public to act as your beta testers. They would have lost some of the sizzle in return for a robust system that wasn’t freighted with unrealistic expectations, but right now, I think that’s a trade they would happily have made.

It’s true that it’s hard to get a real feeling for how much of the problem was data-driven, since many times we couldn’t get far enough into the site to find out. But again, it could have been rolled out in pieces, letting people browse before the law said they could buy.

All of the code would still have needed merciless QA testing and beta testing, but each section would have been solid before the next one was rolled out, and where that wasn’t possible, the potential weaknesses would have been known beforehand, making it easier to locate the launch-day failures that remained.

In the cases cited earlier, the damage was either limited, or over. People’s irritation at not being able to score World Series tickets was tempered somewhat by the fact that they were seeing their team in the World Series at all. The Romney campaign had one day to make Orca work. Once it didn’t it was game over, and there was no payoff at all for getting it working Wednesday.

Obamacare exchanges are different. Not only are they supposed to be the tool by which tens of millions of Americans will — forever — select their health insurance, they’re a precursor to the systems that will store actual medical information for patients, insurers, hospitals, doctors, regulators.

In the end, the only good thing about these websites is that nobody’s actual health depended on their working.

This time.

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A New Form of Revenue

Just as physicists long ago realized that light is neither a particle nor a wave, the Democrats have now, evidently, discovered a form of revenue that is neither a penalty nor a tax:

President Obama:

David Axelrod.

Deputy Campaign Manager Stephanie Cutter:

Austan Goolsbee:

HHS Secretary Sebelius:

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A Loss Wrapped in a Tie Shrouded in a Defeat

References to yesterday’s 98th anniversary of the assassination of Archduke Franz Ferdinand may be overwrought, But contrary to those who see this as a win disguised as a loss inside of a tie wrapped in a stalemate, it was a loss.

Yes, the Court may have drawn some lines with regards to the elasticity of the Commerce Clause, but replacing the ever-elastic Commerce Clause with the taxing power isn’t necessarily a win.  Especially as conservatives have always held that property rights are a key underpinning of political rights.  There is nothing here that necessarily keeps Congress from doing what it pleases, as long as the penalties are collected by the IRS.  What happens then, if they add on an additional provision that, much like student debt, you can work off your sins against the state, but you can work it off more quickly in certain favored ways?

I’ve also heard it asserted that in the political climate, it will make it more difficult to pass large changes, since they’ll have to use the taxing power.  This seems overly-optimistic to me in at least three ways.  First, the ruling in no way begins to roll back nearly a century of mistaken Commerce Clause jurisprudence, and if anything has shown, it’s that the current boundaries of the Commerce Clause are plenty broad enough to contain all sorts of trouble.

Second, I doubt that further massive changes are on the agenda, anyway.  The gargantuan administrative state that this law is going to require, the tens of thousands of pages of regulations and rules and boxes to check off, will provide more than enough machinery for Change as they stand.

But mostly, it’s not as though the individual mandate was ever sold as a tax in the first place.  Taxes may be toxic, but the Court ruled – probably correctly – that something doesn’t have to be expressly declared a tax in order to be valid under the taxing authority.  Even the silver lining here is double-edged: what can be repealed under reconciliation can be passed under reconciliation.  And repeated use of the phrase, “taxing power” has the ability to drain the word “tax” of its deserved fearsomeness.

In terms of this election, it’s certainly a net plus.  It will make Obama’s life miserable on the campaign trail, as he finds himself explaining that “it all depends on what the meaning of ‘tax'” is.  Those who have been calling for him to play against type an imitate Clinton probably didn’t have that part in mind.

It also means that it’s true, as Romney will now say, that “in order to get rid of Obamacare, you have to get rid of Obama.”  The Court essentially eliminated the severability clause between Obama’s presidency and this law.

But this election really is the game.  Not only would Obama’s re-election, or the retention of a Democrat Senate, ensure the eventual transformation of freeborn citizens into subjects, even a victory doesn’t guarantee victory.  The electoral wipeout of 2010, and its foreshocks (Scott Brown) and aftershocks (Keith Judd), have left the Democrats undeterred.  To believe that they won’t use every Senatorial procedural option available to them is probably to hope for too much.  Even the hoped-for lame duck period between November and January will be fraught with opportunities for administrative mischief.

If elections are to continue to have meaning, if indeed, they haven’t already been emptied of their power to reflect change in any but one direction, this one needs to count.


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Justice Kagan, You Got Some Splainin’ To Do

As we know, Elena Kagan was the Obama Administration’s Solicitor General at the time that Obamacare was being drafted, and its legal defenses were being constructed.  As a result, some Republicans have called on Justice Kagan to recuse herself from cases involving Obamacare when they come before the Court.


Now this, from the Daily Caller:

Newly released documents reveal Supreme Court Justice Elena Kagan was more involved with President Obama’s health-care law than she disclosed previously. The documents likely will lead to a revival of questions about whether the Kagan should recuse herself from future cases.

In an email dated Jan. 8, 2010, then-Deputy Solicitor General Neal Katyal sent an email to Senior Counsel Brian Hauck and Deputy Attorney General Thomas Perrelli that indicates Kagan played a key role in coming up with a legal defense.

“Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues … we will bring Elena as needed.”

In an email on March 21, 2010, Katyal urged Kagan to attend a health-care litigation meeting on defending the law. “I think you should go, no?” wrote Katyal. “I will, regardless, but feel like this is litigation of singular importance.”

This isn’t open-and-shut, of course.  The first email says that Elena wanted OSG, not herself, to be involved.  But Katyal’s response isn’t to name the deputy that Kagan wants to go in her stead, it’s to name Kagan herself.

Later, indeed 10 weeks later, Katyal is telling Kagan he thinks she should be at another meeting to craft legal strategy.  There are two ways to read this.  The first is that 10 weeks later, it’s not clear to Katyal that Kagan – his boss – wants nothing to do with this bill.  The other is that the tenor of the email is slightly pleading, making the case for the importance of the legislation.  Would Katyal need to do that if Kagan had been involved before, or perhaps the SG was busy enough that, like all subordinates, is struggling to get on his boss’s calendar.

Either way, the House Judiciary Committee should immediately subpeona any and all OSG emails concerning Obamacare, and get a court order barring the OSG or Main Justice from destroying any of them.

I’ve always personally felt that this was a matter of the appearance of impropriety as much as anything else.   While I really couldn’t imagine any Solicitor General being cut out of discussions on any administration’s signature pieces of legislation, in the absence of an actual paper trail, we’d have to take Kagan’s word for it that even if her office was involved, she was kept out of the loop.

In fact, in an article I saw several months ago (I can’t find it online now, but I’m pretty sure it was the Washington Post), a major media outlet reported that careful steps were taken to keep Kagan out of the loop on Obamacare, even before she was nominated for the Court, indeed, even before she was being discussed as a nominee.  This can only be because all parties concerned knew what was going to happen.  And indeed, at the time, Republican senators did raise the issue:

Two challenges have been levied at the law by attorneys general in Florida and Virginia. Kagan has said she would recuse herself if she had participated in reviewing a draft of a position on the law or had participated in discussions to formulate the government’s position on the legislation.

Then there’s this exchange, from Kagan’s confirmation hearings.  Most of the interrogation on the health care matter looked at Kagan’s opinions on the Commerce Clause.  But right at the end, this:

COBURN: Thank you. And my — I have two final questions. One, was there at any time — and I’m not asking what you expressed or anything else — was there at any time you were asked in your present position to express an opinion on the merits of the health care bill?

KAGAN: There was not.

That contention now appears to be seriously in doubt.

The Democrats have also engaged in a strategy not so much to politicize the Court as to recognize that the Court’s legitimacy is as much political as it is legal.  The left has, for some time, been launching frankly pathetic attacks on the right of Justices Thomas and Scalia to hear the Obamacare cases, mostly centered on the fact that Thomas and his wife hold opinions.  But if they can muddy the waters enough, they can get one of two acceptable outcomes: either both Kagan and Thomas recuse themselves, or neither does.  It’s sort of the legal version of the hockey tactic of bringing in your enforcer to start a fight with the other team’s star, in hopes that they both get thrown out.  That this sort of warfare will ultimately degrade the Court is of little consequence to those on the left, seeking a pre-determined outcome.

I’d very much want to reserve judgment on Kagan herself until we see the rest of the emails, both the ones that Daily Caller has, and the ones that they should have, but don’t.  At the moment, however, Kagan should, without doubt, recuse herself.

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