Kagan’s Role in Health-care Reform Bigger Than Disclosed

“The Obama administration appointed Kagan. It was well known this appointment was (crucial) in terms of providing a defense of the health-care law.”

When the U.S. Supreme Court sits down to determine the constitutionality of President Barack Obama’s health-care reform act, Supreme Court Justice Elena Kagan will have to give more thought to the issue of recusing herself from the case.

Documents recently obtained by the Washington-based Media Research Center and Judicial Watch show that Kagan was much more involved in determining the legality of the law being proposed when she was U.S. Solicitor General than previously disclosed.

According to The Daily Caller, the documents likely will lead to a revival of questions about whether Kagan should recuse herself from future cases that deal with this law. One time already Kagan has refused to recuse herself when she voted with the majority of the Supreme Court in deciding not to expedite the judicial process and have the highest court in the land tackle the issue directly.

The new documents show that Kagan was involved with crafting the legal defense of the Affordable Care Act in her role as solicitor general, before her appointment to the bench. The Washington-based Media Research Center and Judicial Watch obtained the documents through a Freedom of Information Act (FOIA) lawsuit that was filed in February 2011.

One of them, in an email dated Jan. 8, 2010, then-Deputy Solicitor General Neal Katyal told to Senior Counsel Brian Hauck and Deputy Attorney General Thomas Perrelli that Kagan played a key role in coming up with a legal defense for the health-care proposal.

“Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues … we will bring Elena as needed.”

In an email on March 21, 2010, Katyal urged Kagan to attend a health-care litigation meeting on defending the law. “I think you should go, no?” wrote Katyal. “I will, regardless, but feel like this is litigation of singular importance.”

The documents also show that once Kagan was nominated to the Supreme Court, she and Katyal immediately switched course to distance her from discussions about the legislation. From then on she separated herself from the issue; but the previous documents show she was involved.

The Daily Caller said that other email chains between Kagan, White House lawyers and Vice President Joe Biden’s then-Chief of Staff Ronald Klain show a coordinated effort on how to respond to questions about the health-care law that may have arisen in the confirmation hearings.

According to Judicial Watch President Tom Fitton, the Department of Justice is conducting an ongoing investigation that could uncover more documents concerning Kagan’s involvement in the health-care defense.

“I was surprised by these documents considering her testimony,” Fitton told The Daily Caller. “And I suspect some senators on the Judiciary Committee ought to be surprised.”

“It certainly doesn’t look good,” he added. “The Obama administration appointed Kagan. It was well known this appointment was (crucial) in terms of providing a defense of the health-care law.”

With these findings, it will be harder for Kagan to remain on that case. That, in turn, will be a severe setback for the administration’s hopes to get the Supreme Court to rule in their favor. With the nine-member court divided with four conservatives, four liberals, and only one member likely to be a swing vote, the best the White House could hope for is a tie vote if Kagan recuses, or is forced, to recuse herself.

Playing for a tie is not pleasant for the administration.

The Americano/Agencies