Kagan's Recusal Could Kill Obamacare

As of yesterday, Americans are aware of the ruling that found Obamacare unconstitutional since it allows Congress to compel Americans to buy health insurance. We are also aware of the left's knee-jerk response to the ruling, which basically involves a Congressional amendment to allow the law to squeak past the constitutionality issue. However, aside from the fact that the economics of the bill are not viable without the mandate, everyone but Jennifer Rubin overlooked this:

[The ultimate decision] will rest with the Supreme Court, whether the case goes directly there, as Republicans are urging, or whether it stops first in the 4th Circuit (which, I would venture, is very likely to uphold the district court ruling). But here's the tricky part: Justice Elena Kagan, having served in the Obama Justice Department, is surely to recuse herself. With the "liberals" one judge down, even a Kennedy vote to uphold the individual mandate would presumably result in a 4-4 tie. And guess what? If there is a tie, the lower ruling stands. In other words, this is really bad for ObamaCare advcoates.

This must be making the White House very nervous.