July 7, 2011 Print

As ObamaCare Heads to the High Court, Kagan’s Role Questioned

by Catherine Snow

From her days as solicitor general for the U.S. Department of Justice (DOJ) to her current position on the U.S. Supreme Court, information on Elena Kagan’s actual role in formulating and defending ObamaCare has been limited at best. Until now. Due to the veracity of the latest evidence, which was finally released in May by the DOJ, 49 U.S. House members encouraged Judiciary Committee Chairman Lamar Smith to launch an investigation. Smith sent a letter to the attorney general on Wednesday asking for documents involving Kagan and to interview two witnesses. And with the legal challenge to the health care law possibly heading for the Supreme Court next year, the recusal of a liberal justice on an already divided Court would add high drama to the public debate over ObamaCare. Thanks in part to two lawsuits over Freedom of Information Act (FOIA) requests, filed by conservative watchdog groups Judicial Watch and the Media Research Center, the House Judiciary Committee may hold hearings to analyze a series of emails, which appear to underscore Kagan’s intimate involvement in crafting ObamaCare’s legal defense. The combined FOIA lawsuits are now before the U.S. District Court for the District of Columbia. If the investigation confirms what the already disclosed emails seem to suggest about Kagan’s involvement, Kagan may be pressured to answer why the evidence contradicts her under-oath testimony before the Senate Judiciary Committee during her confirmation hearing. The former solicitor general is not the only one under intense scrutiny. In a June 24 letter to Attorney General Eric Holder, Smith called the DOJ on the carpet for allegedly stonewalling:

“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 (Patient Protection and Affordable Care Act) defense activities. … “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.”

Bruce Hausknecht, judicial analyst with CitizenLink, said that recusal standards are there to ensure the public trust. “If a justice has been substantially involved in the very circumstances at issue in her courtroom, her impartiality can reasonably be questioned,” he said. “That potentially leads to public doubt, and is all it takes under judicial ethics standards to invoke her voluntary recusal.” Tom Fitton, president of Judicial Watch, believes the evidence proves Kagan’s blatant conflict of interest. “Any reasonable person would read these documents and come to the same conclusion,” he said. “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.”


Read the House Judiciary letter to the DOJ.

Review FOIA documents released by the DOJ.

Review Judicial Watch’s FOIA complaint.

Review Media Research Center’s FOIA complaint.

Read Kagan’s Questionnaire for Senate Judiciary Committee.

What does the law say about disqualifying a justice, judge or magistrate judge (28 U.S.C. § 455: U.S. Code-Section 455)?