In a July 13 editorial, The Wall Street Journal counsels Elena Kagan to recuse herself from “sitting in judgment” on a case brought by Florida and other states against the health care reform law, and gives two reasons for recusal. First, the editorial speculates that the litigation “must have come up” at a Justice Department meeting she might have attended and asserts: “We doubt that Ms. Kagan would have stayed mum” at that meeting. The Journal calls for senators to submit written questions to Kagan about “whether the legal challenges to ObamaCare ever arose in her presence at Justice.” Second, the editorial argues that because Kagan testified about the limits of the Commerce Clause at her hearing, she must recuse herself from the health care litigation.

The problem with the first reason the Journal gives for recusal is that senators had ample opportunity to question Kagan during the Judiciary Committee hearing on her nomination and subsequently submitted dozens of written follow-up questions for Kagan, and, according to the Journal editorial itself, no one thought the Journal's question was important enough to ask.

The problem with the second reason is that a standard requiring the recusal of any justice who has already discussed the limits of the Commerce Clause would result in all of the sitting justices being recused.

The Journal editorial states:

Ms. Kagan was never asked directly at her hearings about her role as SG regarding the health-care lawsuits. The closest anyone came was this question from Oklahoma Republican Tom Coburn: “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?”

Ms. Kagan: “There was not.”

Regarding a potential recusal, that's not the right question. Ms. Kagan was unlikely to have been consulted on the merits of health-care policy, and even if she did express an opinion on policy this would not be grounds for recusal. The legal precedents on that are clear.

Recusal arises as a matter of judicial ethics if as a government official she expressed an opinion on the merits of the health-care litigation. This is what she would have to render a judgment on were she to be confirmed for the High Court. It is also the question on which she is likely to have participated given her role at the Justice Department.

The SG is the third ranking official at Justice, and its senior expert on Constitutional issues, so it's hard to believe she wouldn't have been asked at least in passing about a Constitutional challenge brought by so many states. The debate about the suit was well underway in the papers and on TV. The matter surely must have come up at Attorney General Eric Holder's senior staff meetings, which the SG typically attends.

We doubt Ms. Kagan would have stayed mum about the cases in internal Justice councils on grounds that Mr. Obama might later nominate her to the Court. At the time the Florida suit was filed on March 23, she was only one of several potential nominees whose names were being floated by the White House.

Senators had two full days to ask Kagan questions at her hearing. And six Republican senators asked Kagan follow-up written questions after the hearing concluded. The written questions and answers took up 80 pages. And according to the Journal none of these senators saw fit to ask the question that the Journal suggests.

Regarding the Commerce Clause, the Journal editorial states:

We also think there are grounds for recusal based on her response during her Senate hearings on the substance of the state legal challenge. The Florida case boils down to whether Congress can compel individuals to buy health insurance under the Commerce Clause. Ms. Kagan danced around the history of Commerce Clause jurisprudence, but in one response to Senator Coburn she did betray a bias for a very expansive reading of Congress's power.

The Commerce Clause has “been interpreted to apply to regulation of any instruments or instrumentalities or channels of commerce,” she said, “but it's also been applied to anything that would substantially affect interstate commerce.” Anything? This is the core question in the Florida case. If she already believes that the Commerce Clause justifies anything that substantially affects interstate commerce, then she has all but prejudged the individual mandate question.

A federal judge is required by law to recuse himself “in any proceeding in which his impartiality might reasonably be questioned.” This has been interpreted to mean that the mere public expression of a legal opinion isn't disqualifying. But this is no routine case.

Ms. Kagan would sit as Mr. Obama's nominee on the nation's highest Court on a case of momentous Constitutional importance. If there is any chance that the public will perceive her to have prejudged the case, or rubber-stamped the views of the President who appointed her, she will damage her own credibility as a Justice and that of the entire Court.

As someone who hopes to influence the Court and the law for decades, Ms. Kagan should not undermine public confidence in her fair-mindedness by sitting in judgment on such a controversial case that began when she was a senior government legal official.

In other words, the Journal thinks Kagan should recuse herself from litigation over the constitutionality of the health care bill because she described how "[t]he Commerce Clause has 'been interpreted' " by the Supreme Court.

But Kagan is not alone in discussing how the Supreme Court has interpreted the Commerce Clause. Indeed, in United States v. Lopez, United States v. Morrison, and Gonzales v. Raich, five of the eight current Supreme Court justices weighed in on the limits of the Commerce Clause. For instance, in Lopez, the majority opinion -- which was joined by current Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas -- stated:

Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power. Perez v. United States, supra, at 150; see also Hodel v. Virginia Surface Mining & Reclamation Assn., supra, at 276-277. First, Congress may regulate the use of the channels of interstate commerce. See, e.g., Darby, 312 U. S., at 114; Heart of Atlanta Motel, supra, at 256 (" `[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.' " (quoting Caminetti v. United States, 242 U.S. 470, 491 (1917)). Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. See, e.g.,Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20 (1911) (upholding amendments to Safety Appliance Act as applied to vehicles used in intrastate commerce); Perez, supra, at 150 ("[F]or example, the destruction of an aircraft (18 U.S.C. § 32), or . . . thefts from interstate shipments (18 U.S.C. § 659)"). Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, Jones & Laughlin Steel, 301 U. S., at 37, i.e., those activities that substantially affect interstate commerce. Wirtz, supra, at 196, n. 27.

And the majority opinion in Gonzales v. Raich -- which was joined by current Justices Ruth Bader Ginsburg, Stephen Breyer, and Kennedy -- stated:

Cases decided during that “new era,” which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U.S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937). Only the third category is implicated in the case at hand.

Furthermore, as an appellate court judge, Samuel Alito weighed in on the Commerce Clause in United States v. Rybar, a case dealing with the constitutionality of the federal ban on machine gun possession. In a dissent from a decision upholding the statute, Alito wrote:

Was United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?

The statutory provision challenged in this case, the portion of 18 U.S.C. § 922(o) that generally prohibits the purely intrastate possession of a machine gun, is the closest extant relative of the statute struck down in Lopez.

[...]

In Lopez, the Supreme Court identified “three broad categories” of legislation permitted under the Commerce Clause: (1) regulation of “the use of the channels of interstate commerce,” (2) regulation and protection of “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities,” and (3) regulation of “activities that substantially affect interstate commerce.”

Similarly, in an opinion she wrote in United States v. Giordano as an appellate court judge, Sonia Sotomayor also weighed in on how the Supreme Court interpreted the Commerce Clause:

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

Furthermore, John Roberts also extensively discussed how the Supreme Court interpreted the Commerce Clause at his Supreme Court confirmation hearing. For instance, Roberts and Sen. Charles Schumer had the following exchange:

SCHUMER: OK. Well, there's a third case that I'd like to bring up, and it's the third leg of the framework in a lot of ways, and that's Wickard v. Filburn.

Do you agree with the principle that the Congress has the power under the commerce clause to regulate activities that are purely local so long as Congress finds that the activities, quote, exert a substantial economic effect on interstate commerce ?

In other words, can Congress regulate commerce that doesn't involve an article traveling across state lines?

ROBERTS: Well, that's obviously the court's holding in Wickard against Filburn, and reaffirmed recently to a large extent in the Raich case.

But I would say that because it has come up again so recently in the Raich case, that it's an area where I think it's inappropriate for me to comment on my personal view about whether it's correct or not.

That's unlike an issue under Marbury v. Madison or Brown v. Board of Education, which I don't think is likely to come up again before the court.

This was just before the court last year. And so I should, I think, avoid commenting on whether I think it's correct or not.

And thus, by the Journal's standard, Kagan and all eight of the sitting justices must recuse themselves from considering the constitutionality of the health care legislation.