Bench Memos

Elena Kagan and Obamacare Part I: Pre-Nomination, Pre-Lawsuit Strategizing

As I mentioned Wednesday, a new cache of documents uncovered by CNS News raises suspicions about Justice Kagan’s involvement as solicitor general in attempts to defend Obamacare against challenges. Some of the crucial language that would trigger her recusal from the case is whether she, in her capacity as SG, “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” She also should recuse “in any proceeding in which [her] impartiality might reasonably be questioned.”

The timeline of her nomination meant that she was already aware she was being considered for an anticipated Supreme Court vacancy by March 5 — before the House voted on the Obamacare legislation on March 21 and the major lawsuits against the law were filed on May 23. Neal Katyal, her chief deputy, has stated that she was walled off “since Day One” on that lawsuit. 

But what we have recently learned (and many suspected beforehand) is that the administration’s defense of Obamacare was under way even before the bill became law and any lawsuit was filed. On January 8, Tom Perrelli was already organizing a meeting of DOJ bigwigs to “get thinking about how to defend against inevitable challenges to the health care proposals that are pending.” Katyal agreed that the SG’s office should be involved, adding candidly, “Let’s crush them.” He then consulted with then-SG Kagan and reported that “Elena would definitely like OSG to be involved in this set of issues.” While Katyal was to be point for the office on the issue, he added that “we will bring in Elena as needed.” 

The meeting ultimately took place on January 13, and the attendees decided to “do some anticipatory thinking about claims that will be asserted and how we will defend against them.”  They anticipated “both well-financed, sophisticated challenges, as well as numerous pro se and frivolous claims.”  After hearing the plan from his assistant (he was out of town for the meeting), Katyal agreed and said he wanted “to make sure our office is heavily involved even in the dct [i.e., district court].”  While the actual litigation had not been filed at that time, these strategy meetings likely touched on issues that did come up in the litigation (after all, they were designed to do so) and definitely could raise questions of her impartiality in the case.

In all of this we have almost no emails directly from Kagan herself and thus are limited to Neal Katyals’ perspective — hence the need for further FOIA requests on this topic. I will address possible reasons for Kagan’s peculiar silence in a later post, but it should be emphasized that DOJ follows a very strict chain of command, and that we have evidence of Katyal running his decisions by Kagan in terms of getting the office involved in the original talks. It would be highly unusual if he did not report to her beyond getting the okay to attend the January meeting in the first place.

Don’t get me wrong, Elena Kagan certainly didn’t start thinking about the Supreme Court for the first time on March 5 when the White House reached out to her. But if she really did wall herself off from Obamacare issues as early as January, it would demonstrate an exceptional confidence in both Justice Steven’s imminent retirement and her position as his eventual replacement, as well as a willingness to refrain from doing her full duty as solicitor ceneral to preserve her chance for the ultimate promotion. It also would conflict with her own sworn statement that she continued to perform the duties of solicitor general until May, with the exception of not getting involved in new litigation starting March 5. How to reconcile these facts is only one of the questions raised by these newly released documents.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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