Skip to comments.DOJ Memo: Solicitor General Kagan ‘Substantially Participated’ in Preparing Obamacare-Related...
Posted on 12/13/2011 1:53:29 PM PST by jazusamo
Complete title: DOJ Memo: Solicitor General Kagan Substantially Participated in Preparing Obamacare-Related Case for Supreme Court
(CNSNews.com) - On Jan. 13, 2010, the Republicans on the Senate Judiciary Committee sent then-Solicitor General Elena Kagan a series of written questions examining the issue of how she would handle recusing herself from cases she might have been involved in as solicitor general if she were confirmed to the Supreme Court.
"Notably, we are concerned about the standard you would use to decide whether to recuse yourself from litigation you participated in as Solicitor General," the senators wrote. "In particular, we are concerned about litigation that was clearly anticipated, but had not yet ... reached the point where your approval was sought for filings or pleadings."
Among other things, the senators asked Kagan if she had ever been asked her opinion regarding the merits, or underlying legal issues, in Floridas lawsuit challenging the Patient Protection and Affordable Care Act (PPACA)otherwise known as Obamacare.
In her written responses, Kagan answered: No.
Then they asked her a more sweeping question: 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 answered: No.
Exactly two months before the Judiciary Committee Republicans asked Kagan these questions, however, her top deputy, Neal Katyal, had written her a memo informing her that she had substantially participated in Golden Gate Restaurant Association v. San Franciscoa case that Kagans own office tied to Obamacare.
(The Justice Department released this memo to CNSNews.com on March 15 of this year in response to a Freedom of Information Act requestbut only after the Media Research Center, CNSNews.coms parent organization, and Judicial Watch had filed lawsuits demanding release of the material.)
On May 28, 2010, 15 days after Katyal sent Kagan this memo informing her that she had substantially participated in the Golden Gate case--and a month before Kagans Supreme Court confirmation hearings started--Kagans office submitted a 26-page brief to the Supreme Court in the case. The brief cited PPACA by name 12 times and referred to it more generally as the federal legislation or the new federal legislation an additional 6 times.
Additionally, the brief cited the Health Care and Education Reconciliation Act (HCERA), the reconciliation bill enacted with PPACA, 7 times.
But it was not merely the number of times the brief cited PPACA that tied it to Obamacare.
The brief argued that the issue in the Golden Gate casewhether a universal health care plan enacted by the City of San Francisco should be thrown out because it was preempted by the federal Employee Retirement Income Security Actshould not be taken up by the Supreme Court at that time because the full federal regulatory framework in which that question could be properly answered could only be seen once all the new regulations needed under Obamacare had been written by the federal agencies responsible for them.
One passage on page 14 and 15 of the brief illustrates the argumentmade by Elena Kagans office--that the Golden Gate case and PPACA were inseparably intertwined.
The preemption issue does not warrant this Courts review at this time for the same reasons that the Department of Labor has determined not to take regulatory action on the issue at this time, the brief told the Supreme Court.
First, the new federal health care legislation contains numerous provisions designed to promote broader access to health care coverage, said the brief. Those provisions include an employer shared responsibility provision that imposes assessments on employers with 50 or more fulltime equivalent employees that do not provide health insurance to their employees if any full-time employee receives a premium tax credit in new health insurance exchanges. See PPACA § 1513, as amended by HCERA § 1003. The legislation also includes a requirement that non-exempted individuals maintain a minimum level of health insurance or pay a penalty. See PPACA § 1501, as amended by HCERA § 1002. And the legislation provides for automatic enrollment of employees in group health plans offered by large employers, PPACA § 1511, and contains several other provisions designed to make health care coverage more affordable and available, e.g., id. § 1401, as amended by HCERA § 1001 (premium assistance tax credits); PPACA § 1402, as amended by HCERA § 1001 (reduced cost-sharing); PPACA § 1421 (small business tax credits); and id. § 1311 (state-based insurance exchanges).
Many of the new provisions will be phased in over several years, and three different federal agenciesthe Department of Health and Human Services, the Department of the Treasury, and the Department of Laborwill be promulgating regulations implementing the provisions, the brief prepared by Kagans office told the court. The full contours and effects of many aspects of the new federal framework therefore remain to be fleshed out.
In the days immediately after President Barack Obama nominated Kagan to the Supreme Court, Edwin S. Kneedler, the deputy solicitor general handling the Golden Gate case twice alerted Kagans top deputy, Katyal, about the connection between it and PPACA and that Kagan had been involved in the case.
At 1:23 pm on May 11, 2010, the day after Obama announced he was nominating Kagan to the court, Katyal sent an email to Kneedler and Malcolm L. Stewart, another deputy solicitor general.
As I understand it, Elena is going to recuse from all new cases, Katyal said. Are there any CVSGs [calls from the Supreme Court for the views of the solicitor general] you have due by cutoff in which she has not participated at all (either in meetings, phone calls, discussions with you, etc.)? She has participated in all of mine, what about yours?
Five minutes later, at 1:28 pm, Kneedler responded to Katyal. The Golden Gate case presents special considerations because of the possible nexus to the Health Care bill, Kneedler wrote. I think I did have some minimal discussions with her about that case.
The next day, at 9:53 am, Katyal sent an email to all of Kagans deputy solicitor generals, including Kneedler. From now on, until the outcome of her pending confirmation hearing, Elena will not be participating in new cases, Katyal wrote. All opps, appeal recs, etc., will not have her name on them, and [redacted text] we should use my name as Acting SG.
Katyal went on to say that Kagan might sign the briefs on cases in which she was already involved. He wanted a listing of those.
There is a small universe of cases in which Elena has substantially participated already (this includes CVSGs where she chaired meetings, etc.), Katyal continued. As to those cases, she very well may sign the briefs. With this email, Id ask each Deputy sometime today to send me a full list of cases that you think fall into that category. Exclude matters in which you have had short conversations with her. This isnt a list regarding her recusals at the Supreme Court should she be confirmed; rather it is a list for her so that she knows what cases she might be signing briefs in.
That evening at 6:31 pm Kneedler emailed his list of such cases to Katyal.
The paragraph in this email in which Kneedler mentions the Golden Gate case has been partially redacted by the Justice Department. It said: 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.
What was in the redacted text immediately proceeding Kneedlers statement that now that health care has passed Kagan may not want to be involved in that brief?
(Kneedlers email contains a similar bloc of redacted text in his subsequent discussion of a case--Montana v. Wyoming--a couple of paragraphs deeper into the email.)
In an affidavit that the Justice Department submitted to the federal court in the FOIA lawsuit brought by the MRC, DOJ explains the redactions in this email: The redacted information contains DOJ attorneys thoughts on the formulation of the governments litigation position in two cases that were pending before the United States Supreme Court and internal legal analysis.
Five weeks before Kneedler sent this email informing Katyal that he had discussed the Golden Gate case with Kagan several times, Kagan herself had sent Kneedler an email inquiring about the case.
On April 2, 2010, ten days after President Obama signed PPACA into law, Kagan sent Kneedler the email under the subject line Cvsgs. Ed, she said, could you give me time of arrival on [name redacted] and [name redacted]? Thanks. Elena.
The names redacted here were apparently those of lawyers working under Kneedlers direction on CVSG briefs requested by the Supreme Court.
In his response, Kneedler told Kagan: [Name redacted] said he thought he could get the draft in Golden Gate to me by early the week after next. [Here approximately five lines of text have been redacted from the email.]
Kagan then emailed back to Kneedler: Ok, let me know.
What was in this approximately five lines of text redacted from Kneedlers paragraph to Kagan about the Golden Gate casein an email sent ten days after PPACA became law?
The affidavit the Justice Department submitted to the federal court explaining the redaction said: The redacted information includes a DOJ attorneys thoughts on specific legal arguments and strategies relevant to one of the cases cited in the email exchange.
On May 13, two days after Obama nominated Kagan to the court and after Katyal had queried Kagans deputies about the cases she had worked on with them, Katyal wrote Kagan a memorandum. The subject line on the memorandum said: CURRENT CASES THAT YOU HAVE WORKED ON
The below contains a list of cases in which we feel that you have substantially participated, Katyal told Kagan. We have not done an exhaustive search, so this should not be used for deciding recusals, should you be confirmed. It is simply a document that you may use to guide your decisions about which cases to participate in pending your nomination.
Under the subheading Edfor Deputy Solicitor General Ed KneedlerKatyals memo 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.]
(As in Kneedlers email to Katyal on the matter, there is a similar redaction in Katyals discussion of the Montana v. Wyoming case in his memo to Kagan.)
What did DOJ remove with these redactions?
The DOJ affidavit submitted to the federal court explaining the redactions said: The redacted information contains a DOJ attorneys thoughts on the formulation of the governments litigation position in two cases that were pending before the United States Supreme Court.
Fifteen days after Katyal sent his memo to Kagan, the Office of Solicitor General submitted its brief in the Golden Gate case to the Supreme Court. The brief was not signed by Kagan, but by Katyal, Kneedler, Assistant to the Solicitor General Matthew Roberts, and four attorneys from the Labor Department.
As discussed above, the brief concluded, the intervening enactment of comprehensive federal health care legislation has dramatically changed the landscape governing payment for health care, substantially reducing the importance of the question whether ERISA preempts state or local requirements and also giving rise to additional legal issues that have not been addressed by the federal Departments responsible for implementing the new legislation or by the courts. Accordingly, this Courts review of the ERISA preemption issue is not warranted at this time.
So, in the redacted email exchange and the several discussions that Deputy Solicitor General Kneedler had with his boss, Elena Kagan, about this case, did he ever discuss its connection to PPACA?
This week, CNSNews.com sent Kneedler via email a PDF file of the documents that DOJ had released as a result of CNSNews.coms FOIA request. CNSNews.com asked Kneedler: During the time that Elena Kagan was solicitor general, did you ever have any verbal or written communications with her about any connection between the Patient Protection and Affordable Care Act and the Golden Gate Restaurant Association case? If you did have such a communication or communications, when did it occur, what did you say and what did she say?
CNSNews.com sent Kneedler this question via email on the afternoon of Dec. 12 and again on the afternoon Dec. 13. Also, on the afternoon of Dec. 12, CNSNews.com left a voice mail message for Kneedler about the question.
Kneedler has not responded.
CNSNews.com also sent former Acting Solicitor General Katyal a PDF file of the FOIA documents released by DOJ. On Dec. 12 and Dec. 13, CNSNews.com asked Katyal this question via email: Do you have any reason now to doubt the accuracy of this May 13, 2010 memorandum in which you informed then-Solicitor General Kagan that she had substantially participated in the Golden Gate case?
Katyal has not responded.
CNSNews.coms FOIA request, initially filed on May 25, 2010, asked for any communications involving Elena Kagan in which the administrations health care reform plan was a topic, or legal challenges to the health-care law signed by President Obama was a topic, or in which the question of whether Solicitor General Elena Kagan ought to recuse herself from any involvement in any particular case in her role as solicitor general due to the prospect that it might later come before her were she to be confirmed to a seat on the federal court was discussed.
In preparing its response to this request, DOJ told the federal court it searched the files of Elena Kagan, Neal Katyal, and Kagans confidential assistant. DOJ did not search the files of Kagans other deputies, including Kneedler.
In its FOIA lawsuit on the matter, Judicial Watch (JW) challenged DOJs decision not to search the files of the other deputies for relevant documents.
In an opinion released on Oct. 13, U.S. District Judge Ellen Huvelle, a Clinton appointee, ruled in favor of DOJ on this issue. JW argues that the search was not adequate because OSG determined to search the files and emails of SG Kagan, her confidential assistant, and then-Principal Deputy Solicitor General Katyal, but did not search the records of the other deputies in the OSG, wrote Judge Huvelle.
However, the judge concluded, this does not render the search inadequate where, as here, DOJ has demonstrated that its decision to search the files of these three individuals was reasonably calculated to uncover relevant documents.
On July 6, House Judiciary Chairman Lamar Smith sent a letter to Attorney General Eric Holder asking Holder for DOJ documents and interviewsincluding one with Neal Katyalso the committee could properly understand any involvement by Justice Kagan in matters relating to health care legislation or litigation while she was solicitor general.
In this letter, Chairman Smith pointed to two other questions the Senate Judiciary Committee Republicans had asked Kagan in their letter probing the recusal issue.
During her Senate confirmation, then-Solicitor General Kagan answered no when questioned about whether she had ever been asked about [her] opinion or offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation or potential litigation resulting from such legislation, Smith wrote. Yet, documents released by the Department in response to recent Freedom of Information Act requests raise questions about that unequivocal denial.
The Justice Department has refused to comply with the House Judiciary Committees request.
Testifying before the committee last week, Attorney General Holder could not cite a legal privilege to justify his departments refusal to comply with this congressional oversight request.
Let’s see lying under oath...nah that ain’t bad enough. lwt’s see if this nut job actually recuses herself from this case since she obviously SHOULD ( no I am not holding my breath)
Kagan Skews so she must recuse.
She just recused herself on the SCOTUS Arizona case. With this information released, if she doesn’t recuse herself on Obamacare, she will look like the Obamacare SCOTUS-appointed stooge we always thought she was.
I hear you, they should have gone to the mats to ax her.
Thanks for linking that!
IMPEACH IMPEACH IMPEACH !
Republican louts in Congress have no courage to fight for Constitutional government. Their nemesis, the progressive Marxists, will die in the effort of Borking a nominee. Clearly there is no hope for constitutional government. If Kagan can be confirmed the vilest tyrant is not far behind.
The party of toopid...thats why.
I'll never forget Lindsay Grahamnesty....saying to Kagan...well, I guess elections have consequences. What a fool, it was obvious in her citing her love for activist judges, she had no intention of following the constitution.
This recusal is nothing more than a ploy. Not to say that she shouldn’t need to recuse herself for reasons the article mentions, she does.
But, how this plays out once the obamacare case rolls around she’ll point back to this case and be able to say that she knows when to recuse herself, isn’t afraid to do it, shows she will when she sees fit, then decline to do so for the obamacare case.
Why the Sam Hill did the Republicans just roll over and let that piece of excrement get onto SCOTUS in the first place?
Insider horse trading: Committee chairmanships, bridges to nowhere in their district, a hidden tax on the oppositions financial support while a tax break is added for their financial support, a better located office, a piece of tail
What we see reported is the tip of the iceberg. Behind every reluctantly given vote was some form of quid pro quo. How many times have we seen alleged mortal enemies yuking it up at some private to-do? We, the great Bible-clinging gun-toters are manipulated like naïve children.
“She just recused herself on the SCOTUS Arizona case.”
Did she? The article I read yesterday, put it in somewhat confusing terms. It seemed to me that she might have recused herself from the decision to take the case, but not the case itself. Hope I’m wrong about that!
The list, Ping
Let me know if you would like to be on or off the ping list
If she doesn’t Recuse (and she will not, because that Socialized Medical Care was the big reason she got Nominated), then Congress MUST move to Impeach for Lying Under Oath.
I couldn’t agree more but we know they’ll never even attempt to impeach her. She’s a democRAT and just following Obama and Holder’s lead.
“Did she? The article I read yesterday, put it in somewhat confusing terms. It seemed to me that she might have recused herself from the decision to take the case, but not the case itself. Hope Im wrong about that!”
I saw that blurb but did not see the article. Do you have a link?
If that turns out to be the case, she will look like an even bigger stooge...and a deceitful stooge at that because she led the press to believe she was recusing herself, without correcting....
BUT, even if she is following orders and her statement was designed to mislead, and she eventually “recinds” her recusal, she has the Obamacare issue and history to answer to.
She may be a Obot dim bulb (by SCOTUS standards), but I hold out hope she doesn’t intend to set out on a SCOTUS career of corruption.
Sorry. Can’t find the link to the article. Maybe someone else can. I have a lot of trouble with FR’s search function.
“I have a lot of trouble with FRs search function.”
As do we all. Thanks for looking. If I find, I will ping back to you.
I could have sworn that I heard on FOX yesterday that she had recused herself, but haven’t seen it anywhere. Martha McCallum said it— I’m pretty sure.
Did not find the article but there is this from Lurking Libertarian:
When a Justice recuses from a case, that is announced when the Court announces that they voted to hear the case, because the recused Justice doesn’t vote on the decision to hear the case. (That is why Kagan’s recusal was announced today, together with the Court’s decision to hear the Arizona case.) Kagan did not recuse from the vote to hear the Obamacare cases.
See also his post 42 in same thread.
The Supreme Court's Order said that the petition for certiorari was granted (lawyer-speak for "SCOTUS will hear the case"), and that Kagan did not participate in the vote. That means that she is recused from the case; if she wasn't recused, she would have participated in the vote. So she will not participate in the argument or decision.
There are sometimes exceptions to this, but none that apply here. In one or two recent cases, Roberts recused from a vote to hear the case because he owned stock in the company that was a party, but then sold the stock after the vote to hear the case so he could vote on the case. But that doesn't apply here; Kagan is recused because she was a lawyer in the case, so she's out for good.
Actually, it may be more of a White House strategy.
From this article on Townhall yesterday, SCOTUS Will Hear Case of Arizona Immigration Law, Kagan Recuses:
This opens up the possibility of a 4-4 tie, which would uphold the appellate court's ruling in favor of the Obama administration -- thus, for Arizona to win, the Court must rule 5-3.
It's interesting to note that her recusal means slightly less in this case than it does in the healthcare case, which she will hear. Because the lower court's ruling in the immigration law case favored the Obama administration, the tie would uphold the ruling -- a vote Kagan would likely cast as well. However, in the healthcare case, the Florida ruling overturned the Affordable Care Act. Thus, if Kagan recused, and the Court tied, Obamacare would be deemed unconstitutional.
They are playing a numbers game, stacking the odds in Obama's favor, a "heads I win, tails you lose" scenario.
For Arizona, a 4-4 goes to Obama. For ObamaCare, they need Kagan's vote, because a 4-4 overturns ObamaCare, meaning that Kagan can't recuse.