Internal DOJ Email: Kagan Was Brought Into Loop on Mark Levin’s Obamacare Complaint

December 9, 2011 - 3:28 PM
Elena Kagan

Then-Solicitor General Elena Kagan (AP Photo)

(CNSNews.com) - Internal Justice Department email communications made just days before the House of Representatives passed the Patient Protection and Affordable Care Act show that then-Solicitor General Elena Kagan was brought into the loop as DOJ began preparing to respond to an anticipated legal complaint that Mark Levin and the Landmark Legal Foundation were planning to file against the act if the House used a procedural rule to “deem” the bill passed even if members never directly voted on it.

In another internal DOJ email communication that same week, Kagan alerted the chief of DOJ’s Office of Legal Counsel to the constitutional argument that a former U.S. Appeals Court judge was making against the use of this rule.

Then, during Kagan’s Supreme Court confirmation process four months later, Republicans on the Senate Judiciary Committee asked her in writing if she had “ever been asked about your opinion” or “offered any view or comments” on the “the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148 [PPACA], or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?"

Kagan answered both questions: “No.”

The DOJ emails from the week before the health-care bill passed--which were released as the result of a Freedom of Information Act lawsuit filed by the Media Research Center (CNSNews.com’s parent organization) and Judicial Watch--raise additional questions about whether Kagan should recuse herself from judging the case against PPACA when the court considers it early next year.

A federal law—28 U.S.C 455—says that a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned” or if he “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

In the days leading up to the March 21, 2010 House vote on the health-care bill, one underlying constitutional issue that became part of the national debate was whether the House could approve the Senate version of the bill without ever directly voting on it by using a procedural rule crafted by then-House Rules Chairman Louise Slaughter (D.-N.Y.)

On March 10, 2010, National Journal’s Congress Daily published a brief story under the headline, “Slaughter Preps Rule to Avoid Direct Vote on Senate Bill.”

The next morning, Washington Examiner Editorial Page Editor Mark Tapscott posted a blog entry citing the Congress Daily report. “In the Slaughter Solution,” Tapscott wrote, “the rule would declare that the House ‘deems’ the Senate version of Obamacare to have passed the House. House members would still have to vote on whether to accept the rule, but they would then be able to say they only voted for the rule, not the bill itself.”

That night on his nationally syndicated radio show, Landmark Legal Foundation President Mark Levin, who served as chief of staff to Attorney General Ed Meese in the Reagan Justice Department, gave a seven-minute presentation on the Slaughter rule. Levin explained why, in his view, use of the rule would violate Article 1, Section 7, Clause 2 of the Constitution which requires both houses of Congress to vote on a bill before it can be presented to the president for his signature.

Levin concluded his discussion by vowing to file a lawsuit against the health-care bill if House Democrats used the Slaughter rule to send it to the president without a direct vote.

“I can tell you, if they pursue this process and try to impose this kind of a law without actually passing a statute, that I will be in a race with scores of others to the courthouse to stop this,” said Levin. “I can’t think of a more blatant violation of the United States Constitution than this.”

(Click below to listen to Mark Levin's March 11, 2010 explanation of why he believed the Slaughter rule was unconstitutional and his plan to file suit against the administration if it was used on the health-care legislation:)

Michael W. McConnell, a former judge on the U.S. Court of Appeals for the 10th Circuit, who is now director of the Constitutional Law Center at Stanford Law School, concurred with Levin’s analysis of the Slaughter rule. On March 15, 2010, four days after Levin discussed it on his radio show, McConnell published an op-ed in the Wall Street Journal.

“The Slaughter solution cannot be squared with Article 1, Section 7 of the Constitution,” McConnell wrote.

“Unless a bill actually has ‘passed’ both Houses, it cannot be presented to the president and cannot become a law,” he wrote.

As solicitor general, Kagan’s job at that time was to defend the administration’s position on constitutional issues raised in federal courts. Was she aware of this serious national debate arising from an underlying constitutional issue confronting President Obama’s health-care legislation just days before the House was set to take it up?

On March 16, 2010, the day after McConnell’s op-ed ran in the Wall Street Journal, Kagan sent an email to David Barron, her former colleague at Harvard Law School, who was then the acting director of DOJ’s Office of Legal Counsel. The Office of Legal Counsel, according to DOJ’s website, provides “authoritative legal advice to the President and all Executive Branch agencies.”

Solicitor General Elena Kagan’s email to acting Office of Legal Counsel Chief David Barron carried this subject line: “Health care q”

The text said: “Did you seee [sic] michael mcConnell piece in the wsj?”

Barron emailed back to Kagan: ‘YES—HE IS GETTING IT GOING.”

The following night, March 17, 2010, the Slaughter rule was featured on the CBS Evening News.

CBS News correspondent Sharyl Attkisson reported that some House Democrats did not want to vote on the Senate version of the health-care bill which included “those controversial sweetheart deals for select states, like that Cornhusker Kickback, the Louisiana Purchase, and what some see as federal funding for abortion.”

“So,” Attkisson said, “House Speaker Nancy Pelosi is considering a controversial strategy to help give cover to those vulnerable Democrats facing tough elections. Under the House self-executing rule, members vote only on the reconciliation bill, the one with the fixes. The controversial Senate version is automatically deemed to be passed--deem and pass-- without a separate vote. Republicans say it`s unconstitutional and have taken to calling the approach the Slaughter rule, named for Louise Slaughter, the top Democrat on the House Rules Committee overseeing the process.”

In the meantime, Levin and the Landmark Legal Foundation had prepared a draft legal complaint against President Barack Obama, Attorney General Holder and other Cabinet officials

The complaint argued that a health-care bill passed under the Slaughter rule would not be a law because it did not satisfy the bicameral voting requirements of Article 1, Section 7 of the Constitution.

Paragraph 27 of the complaint explained that the complaint was designed to be filed as soon as the House acted on the health-care bill—if the Slaughter rule was used—and noted that Levin had discussed the rule’s unconstitutionality on his radio show as soon as its possible use had been reported. It also noted Judge McConnell’s Wall Street Journal op-ed.

“This action is brought immediately upon passage by the House of the Reconciliation Bill so that no reasonable expectations of regularity may be asserted by Defendants,” said Paragraph 27. “Nor do Plaintiffs attack any particular part of the purported law, but its entirety because it was never voted on. In fact, Plaintiffs have been diligent in bringing to public attention the very constitutional defect complained of herein. On March 11, 2010, the day that the intention to consider the Rule was first brought to public attention as the so-called ‘Slaughter Rule’ (named for the Honorable Louise Slaughter of New York being Chair of the House Rules Committee), Plaintiff Levin publicly identified and described in detail the constitutional infirmity on his radio program, which was broadcast nationwide.”

“[O]n March 15, 2010,” the complaint said, “the Honorable Michael W. McConnell, former judge on the United States Court of Appeals also adopted this view in an article published in the Wall Street Journal. Defendants have had every warning that the piece of paper they are about to enforce or are enforcing has no more validity than any other piece of paper.”

On March 17, 2010, the day after Kagan sent her email to OLC chief Barron alerting him to McConnell’s piece in the Wall Street Journal, her top deputy in the Office of Solicitor General, Neal Katyal, sent an email to Associate Attorney General Tom Perelli.

The subject line on Katyal's email was: “Health Care.”

“Tom, I recall you were going to set up a group to deal with the inevitable challenges to this legislation,” Katyal wrote. “Now that this may be coming back, I wanted to circle back and see if you still are developing such a litigation group.”

Eight minutes later, Perrelli responded to Katyal: “Neal—I tabled it when things looked bleak, but we should do it. I’ll get something together in the next week.”

The next day, March 18, 2010, Katyal extended the email chain by responding to Perrelli and carbon copying the messages to his own boss, Elena Kagan. This new email was all about the Levin-Landmark Legal Foundation draft complaint against the prospective health-care law. It noted some of Katyal’s initial analysis of the anticipated constitutional challenge.

The subject line was now: “RE: Health Care.”

“Tom, I was just looking at the draft complaint by Landmark Legal Foundation,” Katyal wrote to Perrelli and Kagan. “It is clearly written to be filed when the House approves the reconciliation bill and before the President signs it. See paras 15-17.”

The email then includes a link to the text of the complaint posted on the website of the Landmark Legal Foundation.

“Also para 27 says the action is being brought before it is signed by President so that no expectations of regularity can be asserted, etc.” wrote Katyal.

“As such we could be in court very soon,” he wrote.

“In light of this, for what its worth,” Katyal continued to Perrelli and Kagan, “my advice (I haven’t discussed this with Elena, but I am cc’ing her here) would be that we start assembling a response, [here about three-quarters of a line of text is redacted] so that we have it ready to go. They obviously have their piece ready to go, and I think it’d be great if we are ahead of the ball game here.”

What was in the redacted text of this DOJ email?

In a document that the Justice Department provided to the federal court in response to the MRC-Judicial Watch FOIA suit, DOJ gave this general description of the material that had been redacted here: “The redacted information contains a Department of Justice (DOJ) attorney’s thoughts, before the Patient Protection and Affordable Care Act was passed, on what categories of legal arguments may arise and should be prepared in the anticipated lawsuit referenced in the email exchange.”

Another email chain that DOJ has released to CNSNews.com as a result of the FOIA lawsuit was sent by Katyal to Kagan on June 15, 2010. That was thirteen day before Kagan appeared in the Senate Judiciary Committee for her Supreme Court confirmation hearings. Approximately an entire page—apparently the text of another person's email that Katyal was forwarding to Kagan--has been redacted from this email chain.

The subject line on Katyal's email to Kagan is: “Fw: connecting you two” Here, Katyal describes for Kagan a conversation he had about her with Attorney General Eric Holder.

“Fyi,” Katyal writes Kagan. ““Also AG just told me that he expects a big story out shortly about whether you are recused in health care litigation. I went over the timing and that you have been walled off from Day One.”

But was Kagan “walled off” from health-care litigation on March 16, 2010, the day she sent an email to acting OLC chief David Barron, alerting him to Michael McConnell’s op-ed challenging the Slaughter Rule?

Was she “walled off” on March 18, 2010, when Katyal carbon-copied her on an email outlining his preliminary analysis of the draft Levin-Landmark Legal Foundation complaint against Obamacare?

CNSNews.com sent Barron and Katyal PDFs of their email exchanges with Kagan from the week before the health-care bill was passed--and asked them about any possible discussions they might have had with Kagan about the topics of these emails.

CNSNews.com asked Barron these questions:

--“Did you ever discuss with then-Solicitor Elena Kagan the so-called ‘Slaughter rule’—or so-called ‘deem and pass’ rule--that the U.S. House of Representatives was considering using in March 2010 to deal with the Patient Protection and Affordable Care Act?”

--“If you did discuss the so-called ‘Slaughter rule’ or ‘deem and pass’ with Kagan, when did you discuss it with her?”

--“If you did discuss the so-called ‘Slaughter rule’ or ‘deem and pass’ with Kagan, what did you say and what did she say?”

--“Did you ever discuss any legal or constitutional issues arising from any health-care-related bill, law or litigation with Elena Kagan while she was solicitor general?”

--“If you did discuss any legal or constitutional issue arising from any health-care-related bill, law or litigation with Elena Kagan while she was solicitor general, what was the issue, when did the discussion take place, what did you say, and what did she say?”

Barron responded to CNSNews.com’s questions via email. “I do not have a comment,” he said.

Katyal is now working at the Washington office of the Hogan Lovells law firm. CNSNews.com sent him the following questions:

--“While you were at the Justice Department, did you ever discuss with then-Solicitor Elena Kagan the so-called ‘Slaughter rule’—or so-called ‘deem and pass’ rule--that the U.S. House of Representatives was considering using in March 2010 to deal with the Patient Protection and Affordable Care Act?”

--“If you did discuss the so-called ‘Slaughter rule’ or ‘deem and pass’ with Kagan, when did you discuss it with her?”

--“If you did discuss the so-called ‘Slaughter rule’ or ‘deem and pass’ with Kagan, what did you say and what did she say?”

--“Other than in the March 18, 2010, email that you sent to Thomas J. Perrelli and cc’d to Elena Kagan did you ever discuss the Landmark Legal Foundation’s and Mark Levin’s draft complaint or plan to file suit if the House used the ‘Slaughter rule’ or ‘deem and pass’ to deal with the Patient Protection and Affordable Care Act?”

--“If you did discuss the Landmark Legal Foundation’s and Mark Levin’s draft complaint or plan to file suit if the House used the ‘Slaughter rule’ or “deem and pass” to deal with the Patient Protection and Affordable Care Act, when did the discussion take place, what did you say, what did she say?”

CNSNews.com sent Katyal these questions via email on Nov. 22, Nov. 28, and Dec. 8. On Dec. 9, CNSNews.com left Katyal a voice mail message at his law firm, asking if he would like to answer the questions.

Katyal did not respond to any of the emails or the voice mail message.

On July 6, House Judiciary Chairman Lamar Smith sent a letter to Attorney General Holder asking DOJ to provide the committee with documents and interviews that the committee believes would allow it to “properly understand any involvement by Justice Kagan in matters relating to health care legislation or litigation while she was solicitor general.”

“During her Senate confirmation, then-Solicitor General Kagan answered ‘no’ when questioned about whether she had ever been ‘asked about [her] opinion’ or ‘offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation … or … potential litigation resulting from such legislation,’” Smith told Holder in that July 6 letter.

“Yet, documents released by the Department in response to recent Freedom of Information Act requests raise questions about that unequivocal denial,” Smith wrote.

One of the interviews the Judiciary Committee is seeking is with Neal Katyal.

The Justice Deparment has thus far refused to comply with the Judiciary Committee’s request.

In a Judiciary Committee hearing on Thursday, Chairman Smith asked Holder if DOJ was asserting a legal privilege in refusing to comply with the committee’s request for the Kagan-related documents and interviews.

“Well, we have not expressed, I guess, at this point a legal privilege,” said Holder. “We have expressed, as I indicated before, constitutional concerns about the nature of the request.”

“Yeah, I know,” said Smith, “but concerns don't rise to the level of a legal privilege. We all have concerns about a lot of subjects. … But if you're not going to assert a legal privilege, then I don't see any reason why I shouldn't get those documents and conduct those interviews. Thank you for that.”

In a statement to CNSNews.com, Mark Levin asked “where is the evidence” that Kagan was in fact “walled off” from health-care matters when she was solicitor general.

“I served in the Justice Department, including as chief of staff to Attorney General Edwin Meese,” Levin told CNSNews.com. “It simply is not credible to argue that Kagan, as the top litigator at Justice and for the nation, would not have been informed about and commented on the legal strategies involving the most important constitutional and policy issue not only in the Obama administration, but in several decades of American history.

“If she had been ‘walled off’ from the matter, where is the evidence for that?” said Levin.  “Who was the gatekeeper? In fact, the emails demonstrate that her subordinates were ensuring that she was kept informed about events and potential legal issues, including Landmark's draft complaint, which was prepared to challenge the Slaughter rule and then-Speaker Pelosi's attempt (albeit abandoned) to bypass the Constitution's law-making requirements. At a minimum, it does not appear that Kagan was forthright during her confirmation testimony about the extent to which she was kept apprised of Obamacare.”