That may be true, but it is not indicated by the present evidence. She was asked her opinion of the "deeming" - that is a far different question than the constitutionality of the act itself. I have not read the briefs, but it seems to me the Court has granted a hearing on two major subject: 1.) the constitutionality of the individual mandate; and 2.) the severability of the mandate from the Act. I have not read anything to indicate the court will hear arguments about whether the legislative process was valid.
I think Kagan should recuse herself - but this email is irrelevant. I think it is a reasonable interpretation of the Congressional Question to believe it was concerned with the Act itself - not the process of its passage. The process is moot to the scheduled Supreme Court hearings.
However, the 2 month gap ...
I do not believe all the email to be irrelevant.
She stated emphatically to Republicans on the Senate Judiciary Committee when they asked her in writing if she had “ever been asked about your opinion” or “offered any view or comments” on the “the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148 [PPACA], or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”
I think that’s pretty clear she was asked about more than just “constitutionality of the act itself”.
“In another internal DOJ email communication...Kagan alerted the chief of DOJ’s Office of Legal Counsel to the constitutional argument that a former U.S. Appeals Court judge was making against the use of this rule.
She lied to Congress, period.