Documents Show Elena Kagan’s Conflict of Interest on ObamaCare

Documents uncovered by a legal watchdog group prove Supreme Court Justice Elena Kagan was involved in the Obama administration’s legal defense of the Patient Protection and Affordable Care Act, otherwise known as “ObamaCare.”

Judicial Watch has released a number of administration communiqués that show Kagan, who was then Solicitor General, presided over the president’s response to lawsuits asserting the government health care bill is unconstitutional.

On January 8, 2010, Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, wrote to Kagan’s deputy, Neal Katyal, asking for the office’s assistance in “how to defend against the inevitable challenges to the health care proposals that are pending.” Three minutes later, Katyal replied, “Absolutely right on. Let’s crush them. I’ll speak with Elena and designate someone.” After Katyal volunteered, Kagan responded, “You should do it.”[1]

A few hours later, Katyal updated Hauck, writing, “Brian, Elena would definitely like OSG [the Office of Solicitor General] to be involved in this set of issues.” Katyal added,”I will handle this myself, along with an Assistant from my office, (Name RedactedBJ), and we will bring Elena in as needed.”(Emphasis added.)

The Justice Department continues to withhold a series of e-mails that would disclose Kagan’s exact role in the negotiations. However, it has turned over the Vaughn index, which describes the items being stonewalled in general terms. These include seven e-mails written from March 17-21, 2010. Kagan was copied on three e-mails that discuss “what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” Another four dealt with “expected litigation” against the health care law; Elena Kagan wrote one of the four being withheld.

In the same week, Perrelli announced a White House meeting “to help us prepare for litigation.” Katyal wrote Kagan, “I think you should go, no?” Kagan ended the paper trail cold, responding, “What’s your phone number?”

This White House and its allies have a history of producing documents that airbrush high-level attendees out of controversial meetings. The Center for Public Integrity has declared the White House visitor logs are “riddled with holes.”

Once Kagan had been nominated for the High Court, Katyal decided Kagan had never been involved in the proceedings in the least.

One year ago yesterday, Justice Department spokeswoman Tracy Schmaler wrote an e-mail acknowledging Katyal was “point” (of reference) on defending ObamaCare, but asking him, “Has Elena been involved in any of that to the extent SG office was consulted?” Katyal responded, “No, she has never been involved in any of it. I’ve run it for the Office, and have never discussed the issue with her one bit.” (Does anyone innocent speak that way?) Katyal later insisted Kagan had been “walled off from Day One.”

After Katyal alerted Elena to the inquiry, a jittery Kagan jumped in, instructing Schmaler, “This needs to be coordinated. Tracy, you should not say anything about this before talking to me.”

This author noted in February that Barack Obama refused to produce documents revealing Elena Kagan’s role in defending ObamaCare. (Obama has long engaged in selectively enforcing the law on FOIA requests.) The reason is simple: without her vote, the signature bill of his presidency is likely to be found unconstitutional.

The justices will soon hear two legal challenges from the states of Virginia and Florida, which already cleared lower courts.

Federal statute 28 U.S.C. 455 demands that a judge must step aside “in any proceeding in which his impartiality might reasonably be questioned” or in which he (or she) “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

By telling Katyal he “should do it,” Kagan appointed the point person who defended ObamaCare. Further e-mails from March 24 reveal Kagan was copied on the administration’s plan to coordinate with U.S. attorneys in fighting state lawsuits against ObamaCare. And she may have attended the administration’s meeting mentioned in the e-mail.

Frankly, it strains credulity to believe the president’s most important legal adviser provided no legal advice on this issue.

Obama knows the Constitution is “a charter of negative liberties. It says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.”  He considers the Constitution“the fundamental flaw of this country that continues to this day.” To complete his revolution, he has packed the Supreme Court with justices sure to rule his way.

At present, the court is relatively evenly split between constitutionalists Antonin Scalia, Samuel Alito, Clarence Thomas, and John Roberts versus progressive revisionists Elena Kagan, Ruth Bader Ginsburg, Sonia Sotomayor, and Stephen Breyer. (Anthony Kennedy, the “swing vote,” regularly cites foreign law in place of the U.S. Constitution.)

Kagan is regarded as politically savvy. While clerking for ultra-liberal Supreme Court Justice Thurgood Marshall, Kagan urged Thurgood not to allow the Supreme Court to hear cases if she believed the court would rule against her, creating Originalist precedent. For example, she advised Marshall to refuse the case of a female prisoner who wanted the state to pay for her abortion. Kagan worried the court would rule against the woman, writing, “This case is likely to become the vehicle that this court uses to create some very bad law on abortion and/or prisoners’ rights.” At Harvard and elsewhere, Kagan has been known for her smooth handling of competing groups, working them around to her way of thinking.

Without Kagan, Obama loses at least one, and perhaps two, pivotal votes, and ObamaCare goes the way of the National Recovery Administration and the Agricultural Adjustment Act.

At a minimum, Kagan’s actions constitute “the appearance of impropriety.” Elena Kagan must recuse herself when the challenges reach the High Court.

If she violates this federal statute, she should be impeached and removed from her seat.

Then again, one can hardly expect this from the same people who did not have the guts to keep her from being confirmed in the first place.


1. Thomas Perrelli appears to have played a role in dropping the voter intimidation case against the New Black Panther Party. Katyal is currently acting as Kagan’s replacement.