Bench Memos

Elena Kagan and Obamacare Part II: Dodging the Record

This is the second in a series of posts discussing the documents unearthed by CNS News in a FOIA request designed to find out how then-solicitor general Kagan was involved in the administration’s constitutional defense of Obama’s signature health-care legislation.

I wrote last week about the pre-passage preparation the Obama administration was doing to combat litigation that was anticipated challenging the constitutional basis of Obamacare, starting as early as January 2010. After those e-mails, though, the next e-mails of interest come up in March. That timing is interesting for a couple reasons. First, because Elena Kagan was told she was being considered for a potential Supreme Court vacancy on March 5 (according to her answers to Judiciary Committee questions). Second, because Obamacare was finally passed by the House on March 21, triggering the two major lawsuits that are currently on the way to the Supreme Court, both filed March 23. 

Once she knew that she was being considered for a SCOTUS spot, it seems that Kagan became particularly savvy about cutting down on her recusal exposure. As I wrote last July, “Risking a recusal on Obamacare would have put her own nomination in jeopardy — why would the president appoint someone to uphold his agenda who couldn’t sit on one of its key cases?” The e-mails we have bear this out.

For example, on March 21, Associate Attorney General Tom Perrelli organized a March 22 meeting at the White House between DOJ bigwigs and “some of the health care policy team” to discuss strategies to counter the suit(s) against Obamacare. Neal Katyal forwarded the e-mail to Kagan, saying

“This is the first I’ve heard of this.  I think you should go, no?  I will, regardless, but feel like this is litigation of singular importance.” 

Her response about one minute later was to the point:

“What’s your phone number?” 

Katyal sends his number, and that’s where the e-mail trail ends. 

Now perhaps Kagan’s hands were occupied, and it was easier to talk than type at that moment (hey, it happens to me a lot). Perhaps she didn’t want to type out a long discussion, or was anticipating the discussion would have so much back-and-forth as to be impracticable on e-mail. 

Or maybe she didn’t particularly want to create a paper trail of the discussion, and the subsequent radio silence was calculated. It obviously wasn’t her habit to discuss things over the phone or she would have had the phone number of her chief deputy on hand.

Kagan certainly knew that her e-mails could become a matter of public record. I understand that all DOJ e-mail is automatically archived after 90 days, and that certain “decisional” items must never be deleted.  If there were any e-mails deleted, the recent JCN FOIA request should at least uncover their existence.  But, from the example above, it appears there may always be missing pieces in the documentary record.

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

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