House Probing Justice Kagan's Link to Obamacare

By Jim Meyers

The House Judiciary Committee is launching a probe into Supreme Court Justice Elena Kagan's prior involvement with healthcare reform legislation that could determine she must recuse herself from future high court deliberations on Obamacare.

When President Barack Obama signed the healthcare bill into law, Kagan was still serving as his Solicitor General and was responsible for defending the administration's position in federal court cases.

In one series of email exchanges between Kagan and staffers, her top deputy says about legal challengers to Obamacare: "Let's crush them."

A federal law prohibits a Supreme Court justice from judging a case if while in previous government service he or she served as counsel or adviser on the case or expressed an opinion about its merits, CNS News reported.

The Judiciary Committee investigation follows up on a letter sent by 49 members of the House to House Judiciary Committee Chairman Lamar Smith, R-Texas, and ranking Democrat John Conyers of Michigan on June 24. It called on the 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."

Chairman Smith sent a letter to Attorney General Eric Holder:
"On June 24, 2011, I received the enclosed letter from 49 Members of Congress. On their behalf, I write to request relevant documents and witness interviews in order to properly understand U.S. Supreme Court Associate Justice Elena Kagan's involvement in health care legislation or litigation while serving as United States solicitor general.

"In recent weeks, questions have been raised about whether Justice Kagan's prior work on what became the Patient Protection and Affordable Care Act (PPACA) while serving as solicitor general should disqualify her from hearing challenges to its constitutionality.

"All parties agree the critical question is the extent of her involvement, as solicitor general, in formulating the administration's legal position on PPACA, which was signed into law by President Obama on March 23, 2010."

On that day, Virginia and Florida filed suits challenging the constitutionality of the law. President Obama would not nominate Kagan for the Supreme Court until seven weeks later.

The letter from the 49 House members pointed to documents released by the Justice Department in response to a Freedom of Information Act request from CNSNews.com on May 25, 2010.

One item released by the DOJ is an email chain showing that on Jan. 8, 2010, then-Solicitor General Kagan assigned her top deputy, Neal Katyal, to handle the expected lawsuits against Obamacare, and that Katyal informed the Associate Attorney General's office that Kagan "definitely" wanted her office involved in this issue.

Brian Hauck, the senior counsel to Associate Attorney General Tom Perrelli, emailed Katyal to tell him that Perrelli wanted "to put together a group to get thinking about how to defend against the inevitable challenges to the healthcare proposals that are pending."

Katyal replied: "Absolutely right on. Let's crush them. I'll speak to [Solicitor General] Elena [Kagan] and designate someone."

Kagan instantly assigned Katyal.

Chairman Smith's letter to Holder includes a request to interview Katyal.

During Kagan's confirmation hearings in the Senate Judiciary Committee, which began on June 28, 2010, Republicans asked her if she had ever been "asked about your opinion regarding the underlying legal or constitutional issues related to any proposed healthcare legislation ... or the underlying legal or constitutional issues related to potential litigation resulting from such legislation." They also asked her whether she had "ever offered any views or comments" on those subjects.

Kagan answered both questions: "No."

On July 20, 2010, the Judiciary Committee voted 13-6 to recommend Kagan's confirmation to the full Senate. On Aug. 5, the Senate confirmed her nomination by a vote of 63-37. She was sworn in on Aug. 7.

Chairman Smith gave the Justice Department a July 29 deadline to produce the documents it has requested.