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  • Obamacare Litigation: More "Golden" Reasons Why Justice Kagan May Need to Recuse Herself

    An internal memorandum from the Office of the Solicitor General (OSG) reveals that Justice Elena Kagan “substantially participated” in a health care case in San Francisco in which the Justice Department argued over the effect of the Patient Protection and Affordable Care Act (PPACA). This raises grave new doubts about the appropriateness of Kagan’s participation as a justice in the Obamacare lawsuit scheduled to be heard by the Supreme Court in March.

    There has been a lot of debate over Kagan’s direct involvement in defending the PPACA while she was still the Solicitor General. Despite emails showing her initial involvement in formulating DOJ strategy to defend the legislation, Kagan has claimed that she had no “substantial involvement” (even though that is not the applicable standard). Attorney General Eric Holder claims Kagan was “walled off” from the case while her Supreme Court nomination was pending.

    By May 2010, emails show that Kagan was well aware of the possible conflict, writing that the OSG’s message pertaining to her involvement in the matter “needs to be coordinated.”

    When asked if his superior had played a role in consultations about defending the law, Neal Katyal, her deputy, wrote: “No, she has never been involved with any of it.” But email traffic suggests that far from being completely “walled off” from the process, Kagan did indeed participate in efforts to defend the PPACA.

    A partially redacted email from Katyal to other OSG personnel states that “Elena would definitely like OSG to be involved” in preparing the PPACA defense and that he would “bring in Elena as needed.” Two months later, after being invited by Associate Attorney General Tom Perrelli to a meeting of the President’s health care policy team to “help us prepare for litigation,” Katyal forwarded the message to Kagan, writing “I think you should go, no? I will, regardless, but I feel like this is litigation of singular importance.” Kagan’s response: “What’s your phone number?”

    While there is at present no direct evidence that Kagan attended the meeting in question, other emails indicate her knowledge and participation in OSG legal strategy over the PPACA. For instance, when the Justice Department became aware in March 2010 that the Landmark Legal Foundation, headed by Mark Levin, was preparing litigation over the “Slaughter rule” that would have “deemed” the health care law to have passed the House through the passage of another unrelated bill, Katyal cc’d Kagan on a message admitting that OSG “could be in court very soon” and must have its reply brief “ready to go.” As further evidence of Kagan’s knowledge of the underlying legal issues of the potential case, when asked whether she had read Judge Michael McConnell’s op-ed on the unconstitutionality of the Slaughter rule, she replied: “YES – HE IS GETTING THIS GOING.”

    But it is Kagan’s involvement in another case, Golden Gate Restaurant Association v. San Francisco, which reveals still more about the extent to which Kagan formulated the government’s legal opinion regarding the PPACA and why she should seriously consider disqualifying herself from the pending Supreme Court case.

    In 2006, San Francisco enacted its own version of Obamacare. The local ordinance was intended to provide health care for uninsured residents and to force employers to make minimum “health care expenditures” on behalf of covered employees. The Golden Gate Restaurant Association filed a federal lawsuit claiming the new ordinance was preempted by federal law, the Employee Retirement Income Security Act of 1974 (ERISA).

    While the restaurant association won its lawsuit at the district court level, it lost in the Ninth Circuit Court of Appeals. The association filed a petition for certiorari with the Supreme Court, asking the court to review the case. The Supreme Court denied certiorari, but only after it requested the Solicitor General to express the views of the United States. In May of 2010, the OSG filed an amicus brief telling the Supreme Court that it should not take the case.

    The amicus brief contains an extensive discussion of the Obamacare legislation. In fact, the OSG’s arguments on the PPACA take up at least six pages—almost half of the 13 pages of “Discussion” in the brief. The OSG informs the court that the Department of Labor decided not to “proceed with a proposed regulation” related to the issues in the Golden Gate case “because of the passage” of the PPACA. This means that there had to have been detailed discussions between the OSG’s Office and the Labor Department over the legislation and its effect on this case. That is confirmed by an email dated March 22, 2010, from Edwin Kneedler, the Deputy SG, to Kagan in which he states that the Labor Department had been requested to produce an insert for the brief “identifying the provisions of the health care bill (as it will be reconciled) that are relevant to the preemption issue in this case.”

    The amicus brief summarizes for the Supreme Court the “numerous provisions” of the new legislation. The OSG argues that the court should not take the Golden Gate appeal because:

    …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.

    According to the OSG’s brief, the “Court’s review of the ERISA preemption issue is not warranted at this time.”

    Elena Kagan’s name is not on the amicus brief; it is signed by Neal Katyal as the Acting SG. However, Katyal wrote a “Memorandum for the Solicitor General” dated May 13, 2010, on the subject of “CURRENT CASES THAT YOU HAVE WORKED ON.” This memo was sent to Kagan “to guide your decisions about which cases to participate in pending your nomination.” It contains a list of cases “in which we feel that you have substantially participated” (emphasis added). The second case listed is “Golden Gate.” Internal emails reveal that the case was “discussed with Elena several times” and that she exchanged multiple private emails with the counsel drafting the brief.

    28 U.S.C. §455 (a) requires a justice to disqualify herself from any proceeding “in which [her] impartiality might reasonably be questioned.” Section (b)(3) mandates that a justice disqualify herself from a case in which she “has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.”

    The fact that Kagan “substantially participated” in a case in which her office filed an amicus brief that discussed the PPACA in detail and provided an opinion on its effect on the issues in that case raises new and serious questions about her impartiality—particularly when viewed together with the evidence of her internal communication regarding the legal challenges to Obamacare. The OSG itself said in an email on May 11, 2010, from Kneedler to Katyal that the “Golden Gate case presents special considerations because of the possible nexus to the Health Care bill.” So even internally, the Justice Department recognized the “nexus” between the Golden Gate case and the PPACA.

    Regardless of whether Kagan actually signed the amicus brief in the Golden Gate case, her undisputedly substantial participation as counsel and adviser in formulating the government’s legal opinion on the effect of the PPACA on the issues involved in that case demonstrates that she possessed and received privileged information concerning the Justice Department’s internal legal opinions on Obamacare. The terms of the federal statute are designed to ensure that an individual with access to privileged information involved in formulating legal strategy and policy regarding an issue such as the constitutionality of Obamacare does not sit on the bench to review that strategy.

    This new evidence must be considered in determining whether it is appropriate for Kagan to sit as a justice to hear the challenge to Obamacare. Otherwise, there could be very negative implications to the public’s perception of the objectivity of the court in general, Kagan in particular, and the legitimacy of the final decision issued by the Supreme Court.

    Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation, a former FEC Commissioner, and the former Counsel to the Assistant Attorney General for Civil Rights at the Justice Department.

    Posted in Obamacare [slideshow_deploy]

    25 Responses to Obamacare Litigation: More "Golden" Reasons Why Justice Kagan May Need to Recuse Herself

    1. Surely this doesn't mean that Justice Kagan and AG Holder haven't been telling the truth. Horrors!

    2. Ward says:

      Interesting, so Kagan needs to recuse herself, but Thomas, who has a direct financial interest and whose wife actually lobbies on behalf of several of the parties involved…is just fine, right? The hypocrisy is incredible.

      • Every person who pays taxes has financial interest. You can't ask every justice to recuse themselves for that either. You seem to forget the current and future fiscal impact of the final decision this court will render.

      • Andre says:

        Thomas's wife has every right to do whatever she wants and not have her husband having to recuse himself also the health rationing law forcing everyone to get insurance is immoral and unconstitutional. How do we know the poeople they claimed couldnt afford it didnt just want to pay their oiwn way in cash instead of insurance. Also medicaid and medicare make it hard to find good doctors but easy to find the frauds and quacks. We should instead end all programs but ssi and social security and raise those two to somewhere between 3 and 5k a month let the elderly and disabled have the same ability we do to decide where the moneys best spent maybe even in investments and live meaningful life instead of a worry about where their next meals coming from

      • JimZ says:

        Hypocrisy? Sorry, you seem blinded by your own ideology. I believe Justice Thomas and his wife are two individual professional people, where as Kagan is one in the same.

      • Mike, Wichita Falls says:

        If there is proof, such as emails, memos, briefs, etc., that Clarence and Ginny discussed the merits of Obamacare, then why hasn't it surfaced? Until it does, if it even exists, his partiality is unreasonably questioned. This same proof does exist, however, between former SG Kagan and others within OSG and DOJ regarding Obamacare, so her impartiality is reasonably questioned. Is it not natural to expect her to give advice on its defense as SG? If this is much ado about nothing, why dump the data on Friday…again?

        If she sits in judgment of Obamacare, no matter how she rules and no matter how many other cases from which she has recused herself, I think Congress has a duty to impeach her for "bad behavior". How can future parties, maybe 30 years worth, be assured of her integrity regardless of her work as SG?

        She still has a few months to save her career.

      • Lloyd Scallan says:

        It was Thomas's wife, not Thomas himself. I have no idea as to how much power you may have over your wife or husband, but most of us have spouses that are free and independent of each other thus can make decissions on our own.

      • vote loud says:

        Interesting that Progressives do not care about the facts!

        Or do they simply get their news from comedians?

        But then "The ends justify the means"… Lying is the Progressive way!

      • Amazedamerican says:

        You sound like a person of authority. Show us the proof the direct financial interest. Yes, you are sour grapes!

    3. Howard says:

      @ward: did u read the statute? Focus on Kagan. Deal with the factsand conclusions the author lays out. If you diasagree fine but Thomas has nothing to do with Kagan. Btw…only she can recuse herself and she won't ever do that although she has in a number of other cases due to this same statute.

    4. Greg says:

      Do you ever think before you post?
      Even if the allegations against Thomas are true, (please show your facts). He had nothing to do with the CRAFTING of Obama care which is the criteria for recusal in Kagan's case. You are comparing apples to oranges and have no credibility in this regard.

    5. Spiritof76 says:

      Any amount of pleading, direct evidence and common sense will have no effect on Kagan. The Supreme Court has become an autocratic ruling body through their life time appointments. Supreme Courts of the past have given us the Dred Scott decision, Separate but equal abominations, commerce clause strectched to mean almost anything and labor laws that has no bounds of one-sided interpretations. You expect the Supreme Court to use the Constitution to interpret it rather than the phony precedents and case laws? If you add the corrupt White House and the Congress to the mix, you have the current conditions of the banana republic in the US. People that constatly look at these problems as Democrats versus Republicans are the fundamental reasons for our pathetic state of affairs in our government. See the post above from Ward as a small evidence of that myopia.

    6. Jim Dahlberg says:

      She will not leave the court over Obamacare. She will only leave if the democrats can be sure a 4-4 vote then she will leave.

    7. Woodsman says:

      Ward, Justice Thomas has never worke don a matter related to PPACA, nor is there any evidence that he has participated in any of his wife's activities. I'm sure Justice Kagan has many friends, close connections who are in favor of Obamacare, but that is not part of any legal precedent any more than Thomas' wife's opinions are for him. Kagan, because she was Solicitor General and because she WORKED on matters tied to or part of PPACA, has crossed a well-defined legal line and that is the issue. It has nothing to do with Thomas. Please use reason and evidence.

    8. Lloyd Scallan says:

      Ok, the author shows Kagan should not be allowed to rule on ObamaCare, but you forget what you're dealing with. Obama, Holder, and their lackeys in the DOJ. Why do you think Obama nominated Kagan? Because she was the best? Or was it because she is of the same ideology and will do exactly what Obama tells her to do. Fact the facts. Obama has vowed to transform this nation. He is doing exactly that through his dictatorship, and no one is stopping him.

    9. ma7514 says:

      Did anyone read the sentence from the author: "there is at present no direct evidence that Kagan attended the meeting in question" I do not understand how anyone can argue over the facts. As far as knowing the legal strategy, any competent attorney would be able to surmise the legal strategies of both sides.
      Additionally, the argument against Thomas is that the line between his impartiality and his and his wife's financial stake in the overturn of health care reform is blurred. As a matter of principal, the campaigns against both justices are partisan. The legal and ethical decision should be that neither justice should recuse themselves.

    10. RennyG says:

      Anyone who follows the big "O" and his Alinsky theory have no regards for laws, constitution, rights and wrongs! They will continue on doing their own things because this is what they want to do and no one will do anything about it!! Love the way we talk about wrongs but do nothing about them!!

    11. Keith Ellenberger says:

      If justice Kagan fails to recuse herself it will provide a republican senate and congress a bona fide reason to impeach her in the spring of 2013. She will join the debris pile of democratic politicians and officials whose careers have been ended by this uncontitutional, poorly thought out, poorly considered(not read by the people who voted for it), and unjust law. Keith E Ellenberger

    12. Mike says:

      I'm no lawyer, but it seems to me that even the "questionable appearance" of a connection with this case should be enough for an ethical judge to recuse themself.

    13. David says:

      Mike, since when has "ethical" had anything to do with the Obama thugs?

    14. FedupMan says:

      Ruth Bader Ginsberg was a lawyer for ACLU before she was put on the court. Just think how much this damaged liberty in the USA and changed everything. NO ONE LIKE THAT with preconceived on anything belongs on the court. Empathy has no place on the court yet Obama stacked the court with 2 such people that will change America far into the future. I still remember libs in the Senate (Feinstein, Leahy, Boxer) who pull nuclear stunts to stop R's from being on the court while ranting and raving about their right to change America with softie feelie LIVING Constitution radicals like Kagan and Sotomayor who have both been rather fluid on truth on confirmation hearings. Supreme Court nominee Elena Kagan says she considers recent high court decisions expanding gun rights to be "settled law." Kagan responded that "once a court decides a case as it did, it's binding precedent."
      So the 1st gun issue she voted on she voted against guns and proved her testimony was a lie. So much for the truth from a liberal judge.

    15. Lulu says:

      Kagan had a part in writing the healthcare LAW that was written by Obama AND Kagan. She should either recuse herself OR IMPEACH HER FOR LYING!!!

    16. Mark says:

      I think all the politicans and judges, including the suprime court judges should be fired!!!!! They are all lying to the public!!

    17. Erik Osbun says:

      Kagan must recuse herself.

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