Maybe they should find the solicitor general who prepared the original defense. Where is she hiding? Oh, wait, she is sitting in judgment of this law without properly recusing herself from the case.
In debating, it is often the case that one must defend a proposition that one does not really believe in. Lawyers do this all the time.
Take, for instance, the position of being the defense lawyer of a criminal whom one privily knows is flat-out guilty, but under the law deserves the best defense possible; so that when found guilty, it will not be for lack of sloppy lawyering.
Could it be that Kagan, though as a condition of employment, and thus required to prepare the case law for Obamacare, really as a Justice cannot support it under the Constitution, and hence will not recuse herself on this??
One never knows until the final verdict is returned.
Look at other appointments: Warren (Eisenhower, school prayer, etc.), Blackmun (Nixon, R. v. W.), Souter (G. H. W. Bush, for abortion, etc liberal), Clarence (G. H. W. B., solid constructionist!), Obama (Kagan, ?????).
One might hope for a better result than anticipated --- but, ??
From Wiki: "In 1996, future Supreme Court Justice Elena Kagan pointed out that the O'Brien court did not appear to be concerned whether the law as enacted or enforced 'matched, or even resembled' the asserted government interest of stopping draft resistance protests. Kagan noted that the law prohibiting the destruction of the draft card 'interfered' with only one point of view: that of the anti-war protester. She allowed as how a successful challenge to O'Brien might come from focusing on such skewed constraints."
Being a little even-handed, Kagan's preparation for the judiciary is formidable in both pragmatic and academic efforts. Who knows?