Lawmakers Want Probe of Kagan’s Role in Pro-Abortion Obamacare

National   Steven Ertelt   Jul 5, 2011   |   11:18AM    Washington, DC

Nearly 50 members of the U.S. House have written a letter to the lawmaker who heads up the House Judiciary Committee asking for a hearing into the role pro-abortion Supreme Court Justice Elana Kagan played during her time in the Obama administration formulating Obamacare.

Kagan is now in a position as a Supreme Court justice to decide whether the legislation that allows abortion funding and presents rationing concerns is constitutional. But there is considerable evidence that she was involved in formulating Obamacare and pressing for its passage and some Republicans have called on her to recuse herself when the various lawsuits filed against it reach the high court.

Rep. John Fleming, a pro-life Louisiana Republican, is leading the effort to lobby House Judiciary Chairman Lamar Smith, a pro-life Texas Republican who is the chairman of the Judiciary Committee, and pro-abortion Democratic Ranking Member John Conyers of Michigan to hold hearings. The letter, to which 49 members affixed their signature, cites the documents CNSNews.com obtained in a Freedom of Information Act request in May 2010 as part of the evidence for the investigation.

“We respectfully call on the House Judiciary Committee to promptly investigate the extent to which U.S. Supreme Court Justice Elena Kagan was involved in preparing a legal defense of the Patient Protection and Affordable Care Act [PPACA] during her tenure as Solicitor General,” the letter says. “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.”

“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 letter continues. “As you know, 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 letter explains.

Documents produced in May by a national judicial watchdog group show pro-abortion Supreme Court Justice Elana Kagan may have helped the Obama administration craft its legal defense of the Obamacare law. The documents provide further arguments for conservatives who are demanding that Kagan recuse herself when the lawsuits challenging Obamacare reach the high court next year.

Kagan has said she was not involved in Department of Justice (DOJ) preparations for legal challenges to Obamacare and she did not recuse herself from the High Court decision in April 2011 not to “fast-track” for Supreme Court review Virginia’s lawsuit challenging the law that presents abortion-funding and rationing concerns for pro-life advocates.

Judicial Watch obtained documents via a Freedom of Information Act (FOIA) lawsuit filed on February 24 that has been combined with a FOIA lawsuit filed by the Media Research Center, a conservative media watchdog group. The lawsuits are now both before the U.S. District Court for the District of Columbia and the new documents come from the MRC litigation.

Judicial Watch indicates that, 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.”]

The group also notes:  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.”

The judicial watchdog indicates that, following Obama’s naming of Kagan as his Supreme Court selection, the tenor of the email exchanges changed. Katyal’s 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.”

“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.