The House Judiciary Committee is launching an investigation of Supreme Court Justice Elena Kagan's involvement with ObamaCare as a member of the Obama Administration to see if she is legally required to recuse herself from judging upcoming cases involving President Obama’s health-care law, and whether the answers she gave to questions posed by the Senate Judiciary Committee during her confirmation hearings were fully accurate.
A federal law—28 U.S.C. 455—prohibits a Supreme Court justice from judging a case in which their impartiality can be reasonably questioned, or if they served as counsel or adviser on the case or expressed an opinion about its merits while in previous government service.
What's at question is the extent to which U.S. Supreme Court Justice Kagan was involved in preparing the legal defense of ObamaCare, AKA the Patient Protection and Affordable Care Act (PPACA) while she served as President Obama's Solicitor General.
Florida and Virginia filed suits challenging the constitutionality of ObamaCare on the same day President Obama signed it into law, March 23, 2010. At that time, Kagan was still serving as Obama’s solicitor general and charged officially with defending the law legally. She remained solicitor general until after her May 10, 2010 nomination.
There's quite a bit of meat here, although the Department of Justice has been stalling and fighting tooth and nail to avoid releasing relevant documents. Lawsuits by Judicial Watch and the Media Research Center to follow up on Freedom of Information Act request that were initially stonewalled finally resulted in an initial release of 66 pages of DOJ e-mails, with the release of more documents pending a court decision:
One series of e-mails shows that on Jan. 8, 2010, then-Solicitor General Elena Kagan personally assigned her top deputy, Neal Katyal, to handle the expected lawsuits against President Obama’s Patient Protection and Affordable Care Act, and that Katyal informed the Associate Attorney General’s office that Kagan “definitely” wanted her office involved in this issue.
This was two weeks after the Senate had passed PPACA—on Dec. 24, 2009--and four months before President Obama nominated Kagan to the Supreme Court.
In the Jan. 8, 2010 email chain, Brian Hauck, the senior counsel to Associate Attorney General Tom Perrelli, emailed Neal Katyal, Kagan’s principal deputy, to tell him that Perrelli wanted “to put together a group to get thinking about how to defend against the inevitable challenges to the health care proposals that are pending.”
On receiving Hauck’s email, Katyal instantly emailed back to say: “Absolutely right on. Let’s crush them. I’ll speak to [Solicitor General] Elena [Kagan] and designate someone.”
Katyal then forwarded Hauck’s email to Kagan and said: “I am happy to do this if you are ok with it.” He also offered Deputy Solicitor General Ed Kneedler as a candidate for handling the health-care issue, or the two of them together.Kagan instantly assigned Katyal. “You should do it,” she said by return email.{...}
“Brian,” Katyal said, “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 [name redacted] and will bring in Elena as needed.”
Other e-mails,generated after Kagan's nomination show a clear effort to 'co-ordinate' the message that she had been totally walled off from any discussion of Obamacare.
During Kagan’s confirmation hearings, she was asked directly about this issue. One question was whether she had ever been “asked about your opinion regarding the underlying legal or constitutional issues related to any proposed health care legislation … or the underlying legal or constitutional issues related to potential litigation resulting from such legislation.” Another question asked her whether she had “ever offered any views or comments” on the same subjects.
Kagan answered both questions: “No.”
This is a huge deal, especially with the House Judiciary Committee involved. No, they likely won't impeach her if she lied or misstated, but they could definitely force her to recuse herself from judging any cases involving ObamaCare.
bush did this too.
ReplyDeleteuh.
i bet you won't post this comment.
uh.