Elena Kagan and Question 3

By Terence P. Jeffrey | December 14, 2011 | 4:50am EST
Considering the debate around President Barack Obama's health care plan and the lawsuits filed against it, then-Solicitor General Elena Kagan's written answers to some of the 13 written questions relating to Obamacare that Senate Judiciary Committee Republicans submitted to her during her Supreme Court confirmation process were remarkably simple and straightforward.

"No," she said.

That was how she answered question No. 2, which inquired if she had ever been asked her opinion about the merits or underlying legal issues in Florida's lawsuit against Obamacare.

That was also the way she answered question No. 3, which asked: "Have you ever been asked your opinion regarding any other legal issues that may arise from Pub. L. No. 111-148?" - aka Obamacare.

Thus, during the time Obamacare was debated, enacted and targeted by lawsuits, no one in Obama's administration bothered to ask his solicitor general about any legal issue that might arise from it.

But two months before Kagan told the Judiciary Committee she had never been asked her opinion regarding any legal issue that might arise from Obamacare, her own top deputy sent her a memo telling her that she had "substantially participated" in her office's handling of Golden Gate Restaurant Association v. San Francisco.

The memo is among documents the Justice Department released in response to Freedom of Information Act lawsuits filed by the Media Research Center (the parent organization of and Judicial Watch.

The Golden Gate case, Kagan's own office would argue to the Supreme Court, had become inseparable from Obamacare.

In 2006, San Francisco enacted a municipal universal health care plan. The Golden Gate Restaurant Association (representing local restaurants) sued, arguing that San Francisco's law was pre-empted by the federal Employee Retirement Income Security Act, which regulates employee benefits plans. A U.S. district court agreed, but the U.S. Court of Appeals for the 9th Circuit did not.

The restaurant association appealed to the Supreme Court. On Oct. 5, 2009, as the national debate over Obamacare heated up, the court asked Solicitor General Kagan to submit a brief on whether it should take up the case.

Deputy Solicitor General Edwin S. Kneedler handled the case for Kagan's office.

On March 23, 2010, Obama signed the Patient Protection and Affordable Care Act.

Ten days later, Kagan sent Kneedler an email about the brief in the Golden Gate case.

"Ed - could you give me a time of arrival on (name redacted) and (name redacted)?" Kagan said.

The redacted names apparently belonged to attorneys working under Kneedler's supervision.

Kneedler emailed back to Kagan: "(Name redacted) said he thought he could get the draft in Golden Gate to me by early the week after next." Immediately after the word "next," the Justice Department has redacted about five lines of text from this email.

What did DOJ remove? An affidavit DOJ submitted to the court in response to MRC's FOIA lawsuit explains the removed material as follows: "The redacted information includes a DOJ attorney's thoughts on specific legal arguments and strategies relevant to one of the cases cited in the email exchange."

Twelve minutes later, Kagan emailed back to Kneedler: "Ok, let me know."

On May 10, 2010, President Obama announced he was nominating Kagan to the Supreme Court. The next day, Kagan's top deputy, Neal Katyal, sent an email to two other deputies, Kneedler and Malcolm S. Stewart.

"As I understand it," Katyal wrote, "Elena is going to recuse from all new cases. Are there any CVSGs you have due by cutoff in which she has not participated at all (either in meetings, phone calls, discussions with you, etc)? She has participated in all of mine, what about yours?"

Five minutes later, Kneedler emailed back, telling Katyal the Golden Gate case was connected to Obamacare and that he had discussed the case with Kagan.

"The Golden Gate case presents special considerations because of the possible nexus to the Health Care bill," Kneedler wrote. "I think I did have some minimal discussions with her about that case."

The next day, Katyal sent an email to all of Kagan's deputies, telling them Kagan would "not be participating in new cases."

However, "There is a small universe of cases in which Elena has substantially participated already (this includes CVSGs where she chaired meetings, etc.)," Katyal wrote. "As to those cases, she very well may sign the briefs. With this email, I'd ask each Deputy sometime today to send me a full list of cases that you think fall into that category. Exclude matters in which you have had short conversations with her. This isn't a list regarding her recusals at the Supreme Court should she be confirmed; rather it is a list for her so that she knows what cases she might be signing briefs in."

In the list he emailed back to Katyal, Kneedler said: "Golden Gate - I discussed this with Elena several times (here DOJ has redacted approximately a full line of text). Especially now that health care has passed, she may not want to be involved in that brief."

What did DOJ remove from this email? Referring to this redaction and another two paragraphs down, the DOJ affidavit said: "The redacted information contains DOJ attorneys' thoughts on the formulation of the government's litigation position in two cases that were pending before the United States Supreme Court and internal legal analysis."

The next day, Katyal wrote a memorandum to Kagan. The subject was: "CURRENT CASES THAT YOU HAVE WORKED ON"

"The below contains a list of cases in which we feel that you have substantially participated," Katyal told Kagan.

The list included this: "Golden Gate - Ed discussed with Elena several times. (Here and two paragraphs down DOJ has redacted some of the text.)"

The DOJ affidavit explains: "The redacted information contains a DOJ attorney's thought on the formulation of the government's litigation position in two cases that were pending before the Supreme Court."

Fifteen days after Katyal wrote this memo to Kagan informing her that she had "substantially participated" in the Golden Gate case, the solicitor general's office submitted its brief to the Supreme Court. Kagan did not sign it. Katyal, Kneedler and several other government attorneys did.

The 26-page brief cited the Patient Protection and Affordable Care Act about a dozen times by name and another half a dozen times as "the federal legislation" or "the new federal legislation." It argued that the Supreme Court should not take up the Golden Gate case because the federal regulatory framework in which it needed to be judged was dependent on the new regulations that would be written to implement Obamacare. asked Deputy Solicitor General Kneedler: "During the time that Elena Kagan was solicitor general, did you ever have any verbal or written communications with her about any connection between the Patient Protection and Affordable Care Act and the Golden Gate Restaurant Association case? If you did have such a communication or communications, when did it occur, what did you say and what did she say?"

Kneedler did not respond.

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