Posted on 05/18/2011 10:26:02 AM PDT by jazusamo
Documents Raise Questions about Supreme Court Justice Kagan’s Role in Obamacare Defense as Solicitor General
Kagan Directs Staff to “Be Involved” in Crafting Defense of Obamacare; Scolds Justice Colleague on the Issue of Her Participation: “This Needs to be Coordinated…You Should not Say Anything about This before Talking to Me.”
Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has obtained documents suggesting Supreme Court Justice Elena Kagan helped coordinate the Obama administration’s legal defense of the Affordable Care Act (also known as Obamacare) while she served as Solicitor General. Kagan has said she was not involved in Department of Justice (DOJ) preparations for legal challenges to Obamacare. Moreover, the Supreme Court justice did not recuse herself from the High Court decision in April 2011 not to “fast-track” for Supreme Court review Virginia’s lawsuit challenging Obamacare.
The following are highlights from the documents obtained by Judicial Watch pursuant to a Freedom of Information Act (FOIA) lawsuit filed on February 24, 2011. (Judicial Watch’s lawsuit has been consolidated with a similar FOIA lawsuit that had been first filed against the DOJ by the Media Research Center. The lawsuits are now both before the U.S. District Court for the District of Columbia. The documents referenced in this release were first produced in the Media Research litigation.)
According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:
Subject: Re: Health Care Defense:
Brian, Elena would definitely like OSG [Office of Solicitor General[ to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]
On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “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.”
In another email exchange that took place on January 8, 2010, Katyal’s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. “Could you figure out the right person or people for that?” Hauck asked. “Absolutely right on. Let’s crush them,” Katyal responded. “I’ll speak with Elena and designate someone.”
However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal position changed significantly as he began to suggest that Kagan had been “walled off” from Obamacare discussions.
For example, the documents included the following May 17, 2010, exchange between Kagan, Katyal and Tracy Schmaler, a DOJ spokesperson:
Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: “Has Elena been involved in any of that to the extent SG ]Solicitor General’s] office was consulted?...
Katyal to Schmaler: “No she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit.”
Katyal (forwarded to Kagan): “This is what I told Tracy about Health Care.”
Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”
Included among the documents is a Vaughn index, a privilege log which describes records that are being withheld in whole or in part by the Justice Department. The index provides further evidence of Kagan’s involvement in Obamacare-related discussions.
For example, Kagan was included in an email chain (March 17–18, 2010) in which the following subject was discussed: “on what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” The subject of the email was “Health Care.” Another email chain on March 21, 2010, entitled “Health care litigation meeting,” references an “internal government meeting regarding the expected litigation.” Kagan is both author and recipient in the chain.
The index also references a series of email exchanges on May 17, 2010, between Kagan and Obama White House lawyers and staff regarding Kagan’s “draft answer” to potential questions about recusal during the Supreme Court confirmation process. The White House officials involved include: Susan Davies, Associate White House Counsel; Daniel Meltzer, then-Principal Deputy White House Counsel; Cynthia Hogan, Counsel to the Vice President; and Ronald Klain, then-Chief of Staff for Vice President Biden. The DOJ is refusing to produce this draft answer.
The Vaughn index also describes a March 24, 2010, email exchange between Associate Attorney General Beth Brinkmann and Michael Dreeben, Kagan’s Deputy Solicitor General, with the subject header, “Health Care Challenges:” “…I had a national conference call with the Civil Chiefs. A memo also went out the day before. I am forwarding right after this. Let’s discuss if you have more ideas about what to do.”
As reported by CNS News:
In the questionnaire she filled out for the Senate Judiciary Committee during her confirmation process, Kagan said she would abide by the “letter and spirit” of 28 U.S.C. 455 in deciding whether she felt compelled to recuse herself as a Supreme Court Justice from any case that came before the High Court.
According to the law, a ‘justice … shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.’ It further says any justice ‘shall also disqualify himself … [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.’
“Any reasonable person would read these documents and come to the same conclusion: Elena Kagan helped coordinate the Obama administration’s defense of Obamacare. And as long as the Justice Department continues to withhold key documents, the American people won’t know for sure whether her involvement would warrant her recusal from any Obamacare litigation that comes before the High Court,” said Judicial Watch President Tom Fitton.
Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has obtained documents suggesting Supreme Court Justice Elena Kagan helped coordinate the Obama administration's legal defense of the Affordable Care Act (also known as Obamacare) while she served as Solicitor General. Kagan has said she was not involved in Department of Justice (DOJ) preparations for legal challenges to Obamacare. Moreover, the Supreme Court justice did not recuse herself from the High Court decision in April 2011 not to "fast-track" for Supreme Court review Virginia's lawsuit challenging Obamacare.
She can be impeached, which won’t happen, and would be after the fact anyway. Recusal is a function of her moral compass.
>Can the other judges on the Supreme Court force her to recuse herself? Can anyone?
I don’t know.
>Can a Republican majority Congress impeach her?
No, because Republicans [as-a-party] have shown they do not have either the will or the moral-conviction to do so by applying the Constitution.
This ho has no business being on the Supreme Court. The left is out destroy everything American. Including the SCOTUS.
At the very least, if ObamaCare reaches the Supreme Court, Kagan should be forced to recuse herself.
The only reason SCOTUS matters is because the States just roll over and play dead. They do not have any obligation to enforce an unconsitutional law, and SCOTUS (part of the Federal government itself) was never intended to be the final word on what the Feds get to do to us.
That is one thing that roiled the South in the run up to the Civil War. Northern states were nullifying the Fugitive Slave Law that required individuals to hunt down fugitve slaves, whether they wanted to or not, under plenaly of fine and/or imprisonment. Dred Scott answered the controversy, and of course we know how the rest of it went.
LOL!! Good one, SkyPlot! :D
LOL!! Good one, SkyPilot! :D
ping
Those hoping the SC will stop this unconstitutional piece of garbage are *fools*. The fix is in, was from the get go. And we have people like Mitt Romney considered “front runners”? How do you like them apples?
The fascists got a great deal, temporarily giving up control of the House in exchange for railroading this monster through.
Obama appoints 2 more Justices and we had better be seriously prepared for crimes on the part of the federal government that have been thought impossible in this country. The right “crisis” and there will be an executive order suspending civil liberties.....indefinitely.
By who? The rallying cry of liberal law breakers is "no controlling legal authority". Worked for Gore and the Buddist Temple, is working for Obama and his fictional eligibility. And it will work if this case ever gets to the SC.
If the Republicans had any integrity, they would force a Constitutional crisis over her when if/when this gets to the court. They won't.
Yes, she should but I would be surprised if she did unless pressured to do so.....
The Left never seems to do the ethical thing. The lefties are always about furthering their policies and judicial activism.
Republicans pencil-whipped her approval and let her slide in with no resistance. Much was known of her lying. They chose not to bring it up. Remember in November 2012.
I can just imagine the stuff were going to find when we throw this bum out in 2012
She MUST recuse herself from any Obamacare hearing!!!!!
We have so much to do:
vote out this president
get a majority in the House and Senate
Impeach Justice Kagan
repeal obamacare
reduce size of government
get the borders secure
Then, and only then, get a new immigration policy and process
Amen, my FRiend amen
Moreover, the Supreme Court justice did not recuse herself from the High Court decision in April 2011 not to "fast-track" for Supreme Court review Virginia's lawsuit challenging Obamacare."
Yet anther problem with the injustice system is the injustices discretion in whether or not their they themselves have a conflict of interest. LoL
It really is amazing how easily corruptible our Federal injustice system is and discussing how arrogant the injustices are about it.
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