Kagan Assigned DOJ Lawyer Who Argued Obamacare Cases In Appeals Courts

By Terence P. Jeffrey | June 3, 2011 | 1:04pm EDT

Then-Solicitor General Elena Kagan testifying at her Supreme Court confirmation hearing in the Senate Judiciary Committee on June 29, 2010. (AP photo/Susan Walsh)

(CNSNews.com) - On Wednesday, Acting Solicitor General Neal Katyal did what his job called for: He traveled to the U.S. Court of Appeals for the 6th Circuit, located in Cincinnati, Ohio, and defended President Barack Obama’s health-care-reform law against a challenge that had been filed by the Thomas More Law Center.

The challenge claims Obamacare's individual mandate is unconstitutional.

Back on May 10, Katyal also argued for the administration in the U.S. Court of Appeals for the 4th Circuit in Richmond, Va., against challenges to the constitutionality of the health-care law. There the suit had been brought by the state of Virginia and Liberty University.

Katyal has also signed multiple briefs and legal documents that the administration has filed in various federal courts in defense of the constitutionality of the health-care law.

What makes this noteworthy is that in defending the administration’s position on the constitutionality of President Obama’s health-care law, Katyal is not only doing his job, he is also doing something he was first assigned to do in early 2010 by then-Solicitor General Elena Kagan.

Kagan, of course, now serves on the U.S. Supreme Court. So, when the arguments that Katyal is forming and presenting in defense of Obamacare in the lower courts arrive in the Supreme Court, their validity will be judged by Katyal's old boss who assigned him to make the arguments.

Is this a conflict of interest? Should this cause Kagan to recuse herself from judging the health-care case?

Is this legal?

There is a federal law that dictates the circumstances under which Supreme Court justices must recuse themselves from a case. It is 28 U.S.C. 455. In the questionnaire she filled out for the Senate Judiciary Committee during her confirmation process, Kagan not only expressly recognized she would be governed by this law as a Supreme Court justice but told the committee she would abide by its “letter and spirit.”

The law states that any “justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.”

It also states that any justice, judge or magistrate “shall also disqualify himself … [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.”

If Kagan, as a Supreme Court justice, sits in judgment in the health-care cases now being argued by the former deputy she assigned to handle these cases, and that he started handling while she was still his boss, might her “impartiality” be “reasonably questioned?”

Internal Justice Department emails secured by CNSNews.com through the Freedom of Information Act provide valuable information for answering that question.

On Dec. 24, 2009, the U.S. Senate approved the Patient Protection and Affordable Care Act, the health-care reform President Obama would later sign into law. By Dec. 30, 2009, the New York Times was reporting that then-Florida Attorney General Bill McCollum was looking at the possibility of a lawsuit challenging the bill if it became law and that there were “nearly a dozen other states who have also threatened to sue over the mandate.”

These threats of lawsuits did not go unnoticed in the Obama Justice Department, where Kagan as solicitor general was responsible for defending the administration’s position in federal court cases—and where Katyal was her top deputy.

Acting Solicitor General Neal Katyal has argued in defense of President Obama's health care law in the U.S. Court of Appeals for the 4th Circuit and U.S. Court of Appeals for the 6th Circuit. (AP photo/Dennis Cook)

On the morning of Friday, Jan. 8, 2010, Brian Hauck, senior counsel to Associate Attorney General Tom Perrelli, sent Katyal an email. “Hi Neal,” Hauck wrote. “Tom wants me to put together a group to get thinking about how to defend against the inevitable challenges to the health care proposals that are pending, and hoped that OSG [Office of Solicitor General] could participate. Could you figure out the right person or people for that? More the merrier. He is hoping to meet next week if we can.”

Katyal had apparently already made up his mind about where he stood on the constitutionality of the not-yet-enacted Patient Protection and Affordable Care Act. He instantly fired an email back to Hauck. “Absolutely right on. Let’s crush them,” he said.

Immediately after that, Katyal forwarded Hauck’s email to his boss, Solicitor General Kagan. In that email he indicated he would like Kagan to assign him to handle the expected health-care litigation.

“I am happy to do this if you are ok with it,” he told Kagan. “Otherwise [Deputy Solicitor General] Ed [Kneedler] would be the natural person. Or both of us.”

It did not take Kagan long to decide who she wanted to handle the health-care litigation. She granted Neal “Let’s Crush Them” Katyal his wish. Less than two and a half minutes after she got his email, she sent Katyal a response.  “You should do it,” she said.

That was at 11:01 a.m. A little more than two hours later—after the lunch hour, at 1:05 p.m—Katyal sent another email to Hauck in the associate attorney general’s office. Now, he not only knew he had the assignment from Kagan but also believed Kagan’s desire to have her office involved in the issue was definite and that she would be getting personally involved in it as necessary.

“Brian, Elena would definitely like OSG to be involved in this set of issues,” Katyal emailed Hauck. “I will handle this myself, along with an Assistant from my office [name redacted] and will bring in Elena as needed.”

This was four months before Kagan would be told by President Obama on May 9, 2010 that he wanted to nominate her to the Supreme Court, and two months before the White House would inform her on March 5, 2010, that the president wanted to consider her for a potential Supreme Court vacancy.

When Kagan assigned Katyal to handle the expected litigation challenging President Obama’s health-care law she was a legal partisan in the matter.

And she would not recuse herself from her job as solicitor general until after President Obama nominated her to the Supreme Court four months later on May 10, 2010.

On Jan. 13, 2010, the associate attorney general held an initial meeting to plan the department’s response to the expected lawsuits against the health-care bill. Katyal was out of town that week so he did not personally attend, but another Justice Department official who did attend reported to him via email about the meeting.

Katyal responded by indicating that he wanted Kagan’s solicitor general’s office to be deeply involved in the health-care litigation from the district court level on. “I want to make sure our office is heavily involved even in the dct [district court],” he said in a reply email.

On Sunday, March 21, 2010, the U.S. House of Representatives passed the Patient Protection and Affordable Care Act, which the Senate had passed the previous December 24. That evening, Associate Attorney General Perelli emailed Katyal and some other Justice Department lawyers to invite them to a meeting to be held the next day at the White House about the soon-to-be-filed lawsuits against the act. Shortly after receiving that Sunday-night email, Katyal forwarded it to Kagan.

“This is the first I’ve heard of this [White House meeting],” Katyal told his boss. “I think you should go, no? I will, regardless, but feel this is litigation of singular importance.”

At this point, for whatever reason, Kagan wanted to communicate with Katyal in verbal rather than emailed form. She responded to him: “What’s your phone number?” Katyal sent it to her.

What did Katyal discuss with Kagan on the phone that night? CNSNews.com has put that question—among others--in writing to Katyal: “What did you and Solicitor General Kagan discuss that evening about the health-care litigation, the White House meeting about it, or related issues after you sent her your phone number?”

The Justice Department has declined to answer CNSNews.com's questions to Katyal citing as its reason ongoing litigation over the CNSNews.com Freedom of Information Act (FOIA) request that seeks additional records relevant to whether Kagan ought to recuse herself from the health-care case.

Two days after Kagan and Katyal’s Sunday-night email exchange, Obama signed the health-care-reform law. That same day Florida and Virginia filed suit against it. Katyal is now representing the Obama administration in those and other cases challenging the law--such as the Thomas More Law Center suit--thus following up on the assignment Kagan first gave him on Jan. 8, 2010.

And Kagan is sitting on the Supreme Court, where unless she recuses herself under the terms of 28 U.S.C. 455, she will judge whether the argument her subordinate has made in pursuit of the assignment she gave him is correct.

On June 15, 2010, two weeks before Kagan’s confirmation hearings, Katyal sent Kagan an email in which he said that Attorney General Eric Holder had told him that “he expects a big story coming 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,” Katyal told Kagan.

On July 13, 2010, during Kagan’s confirmation process, Republicans on the Senate Judiciary Committee sent Kagan a letter in which they asked her whether she had ever been asked or had ever offered her views about the underlying legal and constitutional issues "related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148 [the Patient Protection and Affordable Care Act], or the underlying legal or constitutional issues related to potential litigation resulting from such legislation.”

Kagan said she never had.

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