49 House members demand probe of Kagan involvement in ObamaCare

posted at 11:35 am on July 1, 2011 by Ed Morrissey

Did Elena Kagan mislead the Senate Judiciary Committee during her confirmation hearing when answering questions about her level of involvement in ObamaCare?  Forty-nine House members have signed a letter to the House Judiciary Committee demanding an investigation of that question, as new documents suggest that the now-Supreme Court Justice helped the Obama administration craft legal defenses for the law.  The signatories argue that this should require Kagan to recuse herself from considering the appeals that will likely arrive at the Supreme Court from three different appellate circuits:

Forty-nine members of the U.S. House of Representatives are calling for the House Judiciary Committee to investigate Supreme Court Justice Elena Kagan’s involvement in Obamacare while she was serving as solicitor general in the Obama administration.

The lawmakers also say that they believe the evidence so far made public already shows that Kagan must recuse herself from court cases involving the health care bill signed into law by President Barack Obama while she was serving as Obama’s solicitor general. …

“Contradictory to her 2010 confirmation testimony before the Senate Judiciary Committee, recently released Department of Justice documents indicate that Justice Kagan actively participated with her Obama administration colleagues in formulating a defense of PPACA,” wrote the 49 congressmen.

“Regrettably the Justice Department has been uncooperative to date with repeated FOIA requests that seek the full body of relevant emails from the Office of the Solicitor General that would reveal the scope of Kagan’s involvement in PPACA defense activities,” the congressmen said.

During the period of time when Congress sharply debated ObamaCare, Kagan’s input could certainly have seemed critical.  As Solicitor General, Kagan would have had to defend the law before the Supreme Court on behalf of the administration.  Crafting the bill to withstand that kind of scrutiny and to mold the bill into a more-defensible form would have fallen within the purview of the Solicitor General, although it certainly wouldn’t have required it.

Did Kagan participate in crafting a defense of the PPACA, as it is officially known?  In her sworn testimony before the Senate, Kagan denied being asked for any opinion on the merits of the bill, a question she was directly asked by Tom Coburn on the third day of her hearing:

COBURN: Thank you. And my — I have two final questions. One, was there at any time — and I’m not asking what you expressed or anything else — was there at any time you were asked in your present position to express an opinion on the merits of the health care bill?

KAGAN: There was not.

That may still be true.  However, it’s clear that Kagan was interested enough in the defense of the bill to encourage her top deputy at the time, Neal Katyal, to participate in crafting a defense.  E-mails from previous FOIA requests show that Kagan told Katyal “You should do it” when he was approached by Brian Hauck on behalf of Thomas Perrelli, the Associate Attorney General.  Katyal then copied Kagan on the work he was doing to build the defense of ObamaCare.  Katyal then asked Kagan for permission to attend a litigation preparation meeting as Congress passed ObamaCare, to which Kagan asked for Katyal’s phone number to discuss.

However, on May 15, 2010, there is an interesting exchange between Katyal, Kagan, and Tracy Schmaler in the DoJ’s Office of Public Affairs — basically a PR flack.  Schmaler asks Katyal if Kagan had ever been involved in PPACA consultations, to which Katyal says no, and then copies Kagan on the reply.  Kagan then tells Schmaler directly not to say anything about that question without directly coordinating with her (Kagan).

That denial is rather interesting, because on March 22nd — a day after Katyal asked Kagan’s permission to join the defense — Kagan e-mailed her deputy Solicitor General, Edwin Kneedler, to ask a question specifically about what seems to be a personnel assignment directly related to the ObamaCare legislation.  In June, another series of e-mails from deputy SG Malcolm Stewart copied Kagan on strategy to keep a specific health care issue related to “reverse payments” (the Preserve Access to Affordable Generics Act) out of the PPACA debate.

It doesn’t appear that Kagan was as hermetically sealed from the ObamaCare defense as she previously indicated.  The letter wants to press Kagan to recuse herself, based on federal law:

“As you know,” the wrote, “Section 455 of Title 28 of the United States Code establishes unambiguous conditions in which federal judges must recuse themselves from proceedings in which their impartiality might reasonably be questioned,” the lawmakers wrote. “According to the law, a justice should recuse themselves in cases ‘where he has served in governmental employment and in such capacity served as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.’

“Even from the limited number of DOJ emails released to date through a Freedom of Information Act lawsuit, it is evident that Justice Kagan was involved in PPACA defense activities to a degree that warrants her disqualifications from related proceedings as specified by Section 455,” the lawmakers said.

This is what those attacking Clarence Thomas for his wife’s political activities have been trying to keep quiet through a campaign of distraction.  A House hearing will likely bring a lot more attention to Kagan’s connection to the PPACA defense effort in the White House and possibly could open up a can of worms if further evidence that she did gave more explicit assistance to the effort.  Nothing in the e-mails that the Obama administration has yet released show her answer to Coburn to be false, but there are a number of e-mails that the White House has refused to release from the FOIA request.  If there is something more significant, it might move from a recusal demand to a probe of Kagan’s conduct in her Senate hearing, which won’t help the Obama administration with the rest of its nominees requiring confirmation in the Senate.

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