Kagan Sits in Judgment of Obamacare—Despite Cheering Its Passage and Assigning Lawyer to Defend It

Terence P. Jeffrey | March 26, 2012 | 2:00pm EDT
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Then-Solicitor General Elena Kagan and President Barack Obama in the White House on May 10, 2010, the day Obama nominated Kagan to the U.S. Supreme Court. (AP Photo/Susan Walsh)

(CNSNews.com) - When the Supreme Court on Monday began hearing oral arguments in the cases challenging the constitutionality of the Patient Protection and Affordable Care Act—AKA “Obamacare”—Supreme Court Justice Elena Kagan showed up to hear the arguments and gave no indication she would recuse herself from judging the cases even though she had cheered enactment of Obamacare as an Obama political appointee and had personally assigned her top deputy in the Obama Justice Department to defend the law in federal court.

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

During her confirmation process in the Senate Judiciary Committee, Kagan assured the committee in written responses to its questionnaire that she would follow the “letter and spirit” of 28 U.S.C. 455.

On Monday, the court heard lawyers’ arguments about whether the Anti-Injunction Act of 1867 prevents the court from hearing cases challenging the constitutionality of Obamacare until after someone has had to pay a “penalty” for not buying the health-insurance mandated by the law. Kagan sat in the court as the lawyers presented their arguments and asked questions about the Anti-Injunction Act’s application to the substance of Obamacare.

At one point, Kagan told one of the lawyers that, in Obamacare, Congress had enacted a “regulatory command” to individuals to buy insurance.

“The statute has two sections,” Kagan said, according to the court’s official transcript of the hearing. “One is the you have to have insurance section and the other is the sanction. The statute has two different sets of exceptions corresponding to those two different sections. You are trying to suggest that the statute says: Well, it's your choice; either buy insurance or pay a--or pay a fee.  But that's not the way the statute reads. And Congress, it must be supposed, you know, made a decision that that shouldn't be the way the statute reads, that it should instead be a regulatory command and a penalty attached to that command.”

Internal Department of Justice documents secured by CNSNews.com through the Freedom of Information Act demonstrate that when Kagan was Obama’s solicitor general, charged with defending his administration’s positions in federal court disputes, she personally assigned her top deputy to handle the anticipated legal challenges to Obamacare.

On May 25, 2010, a month before the Senate Judiciary Committee convened confirmation hearings on Kagan’s Supreme court nomination, CNSNews.com filed a Freedom of Information Act (FOIA) request with the Department of Justice seeking documents related to Kagan’s possible involvement in the Obamacare legislation or litigation and decisions she made on recusing or not recusing herself from cases as solicitor general because they might later come before her were she ever confirmed to a federal court.

On Nov. 23, 2010, after DOJ had failed for six months to provide CNSNews.com with any documents responsive to the FOIA request, the Media Research Center, CNSNews.com’s parent organization, filed suit against DOJ in the U.S. District Court for the District of Columbia. The suit called on DOJ to release the relevant documents.

On March 15, 2011, while MRC’s FOIA lawsuit was still pending in the district court, DOJ released 66 pages of internal documents to CNSNews.com, partially responding to the FOIA request. (The ongoing FOIA lawsuit is now in the U.S. Court of Appeals for the District of Columbia.)

Among the documents that DOJ released last March, was an internal email chain dated Jan. 8, 2010. In this email chain, then-Solicitor General Elena Kagan personally assigned her then-top deputy, Neal Katyal, to handle the anticipated lawsuits against Obamacare.

This email chain starts with Brian Hauck, senior counsel to Associate Attorney General Tom Perrelli, sending a message to Neal Katyal, Kagan's top deputy in the Office of Solicitor General.

Hauck said to Katyal: "Hi Neal--Tom wants to put together a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending, and hoped that OSG (Office of Solicitor General Kagan) 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 responded almost instantly with great enthusiasm for the coming court battle to defend Obamacare. “Absolutely right on. Let’s crush them,” Katyal wrote. “I’ll speak with Elena and designate someone.”

Katyal also forwarded Hauck's email to Kagan, suggesting she assign him the anticipated Obamacare cases.

"I am happy to do this if you are ok with it," Katyal wrote.

Kagan quickly wrote him back to Katyal, obliging his desire handle the Obamacare cases. "You should do it,” she said.

That afternoon Katyal emailed again to Brian Hauck in the associate attorney general’s office: "Brian, Elena would definitely like OSG to be involved in this set of issues. I will handle this myself, along with an Assistant from my office, (here the name of the assistant is redacted) and we will bring Elena in as needed."

On Sunday, March 21, 2010, the day the House voted to enact Obamacare, Kagan had an email exchange with Harvard Law Prof. Lawrence Tribe, who at that time was working for the Obama Justice Department. DOJ did not release this email exchange to CNSNews.com until Nov. 9, 2011. In it, Kagan expressed glee that Obamacare was going to pass that day.

“I hear they have the votes, Larry!!” wrote Obama’s future Supreme Court nominee. “Simply amazing.”

That same day, Associate Attorney General Perrelli sent an email to a number of top DOJ officials, including Katyal, the deputy Kagan had assigned to handle the Obamacare-related litigation. The subject line on the email was: “Health care litigation meeting.”

Perrelli told Katyal and the others there was going to be a meeting the next day at the White House to talk about the lawsuits the administration knew would be filed against the law.

“It sounds like we can meet with some of the health care policy team tomorrow at 4 to help us prepare for litigation. It has to be over there,” Perrelli wrote. “Can folks send me the waves info (full name, SSN, DOB) of everyone that should attend as soon as possible? WH wants it tonight, if possible.”

Katyal forwarded this email to Kagan, apparently assuming that as Obama’s solicitor general responsible for defending the Obama administration’s positions in federal court disputes, she would be interested in this meeting.

“This is the first I’ve heard of this. I think you should go, no? I will, regardless but feel like this is litigation of singular importance,” Katyal wrote Kagan.

Kagan emailed her deputy back: “What’s your phone number?” Katyal then emailed his number to her.

Two days later, on March 23, 2010, Obama signed the health care law and Virginia and Florida immediately filed suit against it. Obama would not nominate Kagan to the Supreme Court until seven weeks later on May 10, 2010, and Kagan would not recuse herself from her duties as solicitor general until after that nomination was announced.

Meanwhile, Katyal, the deputy Kagan had personally assigned to handle the Obamacare cases, went on to argue those cases on behalf of the Obama administration in multiple federal appeals courts.

The day after Obama nominated Kagan to the Supreme Court, Katyal himself wrote an email to Kagan’s other deputies asking them for a list of the cases they were working on in which she had “participated” as solicitor general.

In his initial response to Katyal, Deputy Solicitor General Ed Kneedler said: “The Golden Gate case presents special considerations because of the possible nexus to the Health Care bill. I think I did have some minimal discussions with her about that case.”

The next day, Kneedler sent Katyal another email saying he had discussed this Golden Gate case with Kagan “several times” before Obama had nominated her to the Supreme Court and she may no longer want to be involved in it, considering that the health-care bill had passed.

“Golden Gate--I discussed with Elena several times [here about one full line of text is redacted] Especially now that health care has passed, she may not want to be involved in that brief,” Kneedler wrote Katyal.

Katyal then wrote a May 13 memo to Kagan headlined: “CURRENT CASES THAT YOU HAVE WORKED ON”

“The below contains a list of cases in which we feel that you have substantially participated,” Katyal wrote.

Under the subheading “Ed”—for Deputy Solicitor General Ed Kneedler—Katyal’s memo to Kagan said: “Golden Gate  Ed discussed with Elena several times [Here about a line and a quarter has been redacted from the text by the Justice Department.]”

Two weeks later, Kagan’s office submitted a 26-page brief to the Supreme Court on the Golden Gate case. The case was about a universal health-care ordinance enacted by the City of San Francisco. A local trade association representing restaurants had challenged the act arguing that it conflicted with provisions of the Employee Retirement Income Security Act, which regulated employees benefit packages. The brief that was submitted to the Supreme Court by Kagan’s office--signed by Katyal and Kneedler--mentioned the Patient Protection and Affordable Care Act by name 12 times and referred to it as “the federal legislation” or the “new federal legislation” another 6 times. It also cited the reconciliation law enacted in conjunction with PPACA 7 times.

The brief argued that the court should not take up the Golden Gate case at that time because the regulatory framework in which it needed to be decided would not be settled until all the new regulations required by Obamacare had been written by the federal agencies responsible for them.

“Many of the new provisions will be phased in over several years, and three different federal agencies—the Department of Health and Human Services, the Department of the Treasury, and the Department of Labor—will be promulgating regulations implementing the provisions,” Kagan’s office told the court. “The full contours and effects of many aspects of the new federal framework therefore remain to be fleshed out.”

During Kagan's confirmation process in July 2010, the Republicans on the Senate Judiciary Committee sent her a letter in which they asked if she had ever been asked her opinion regarding the merits or underlying legal issue in Florida’s lawsuit against Obamacare. Responding in writing, Kagan said: “No.”

The Republicans then asked Kagan: “Have you ever been asked your opinion regarding any other legal issues that may arise from Pub. L. No. 111-148?” (Pub. L. No. 111-148 is the Obamacare law.)

Kagan again said: “No.”

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