Bench Memos

Elena Kagan and Obamacare Part III: What Constitutes ‘Involvement’?

This post is the third 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.

As I noted in earlier posts, we know that the DOJ started planning how to bat down Obamacare challenges at least as early as January, well before the law was passed. We also know that then-SG Kagan wanted her office involved and delegated Neal Katyal, her chief deputy, to attend the relevant meetings. It was agreed that she herself would be brought in “as needed.” 

Skip to March, when the law was passed. By this time Kagan knows she is on the short list for an anticipated Supreme Court opening, and when another Obamacare strategy meeting is being planned, this time with DOJ heads at the White House, Kagan won’t even give her opinion via e-mail. She asks Katyal to call her about it instead, and he ends up attending the meeting himself.

Then, on May 17 — after Kagan had been nominated to replace Justice Stevens — Tracy Schmaler, deputy director of the DOJ’s Office of Public Affairs, sent an e-mail to Katyal asking about Kagan’s involvement in the health-care litigation, since she anticipated media inquiries about the case as Kagan’s nomination proceeded. Katyal’s response, which he forwarded to Kagan: “No, she never has been involved in any of it. I’ve run it for the Office, and have never discussed the issue with her one bit.” 

Of course, that depends on what the word “discussed” means, because we know he asked her about attending the group planning meetings, and reported that she definitely thought the SG’s office should be involved.

And Kagan’s own response (less than two minutes later) is even more suspicious: “This needs to be coordinated. Tracy, you should not say anything about this before talking to me.”

On June 15, in consultation about a story on Kagan, Obamacare, and recusal, Katyal told reporters that she had been “walled off from Day One,” and e-mailed Kagan to advise her of this. He had acknowledged that health-care questions were not just run-of-the-mill recusal inquiries, characterizing them as “sensitive.”

Apparently Katyal’s definition of “walling off” is different than mine. Kagan’s involvement with Obamacare in January alone triggered one former member of the SG’s office to assume she must recuse herself:

How could Justice Kagan participate in deciding the healthcare case if she made the decision that OSG would be involved in the litigation?  Seems like a no-brainer that that constitutes substantial personal participation.

But, as these e-mails indicate, Justice Kagan may be operating on a different understanding of “participation” than one might assume. Are her actions so far sufficient to trigger disqualification under 28 U.S.C. §455(a) because her “impartiality might reasonably be questioned”? How about section 455(b)(3) disqualifying government employees who “have expressed an opinion concerning the merits of the particular case in controversy”? Does assigning your deputy to be your office’s representative to the Obamacare defense team — a deputy whose personal approach to Obamacare challenges was “Let’s crush them” — constitute sufficient involvement or tipping of one’s hand to trigger recusal?

From what we know so far, I don’t see enough evidence to know whether Justice Kagan must recuse herself from considering the upcoming Obamacare challenges, but the recently revealed e-mails certainly point in that direction. This is precisely why JCN filed its FOIA request trying to reach more documents on this issue. The public deserves answers to the growing questions about Kagan’s involvement in Obamacare.

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

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