New Documents about Justice Kagan’s Involvement with Obamacare

During her confirmation hearings last summer, senators were already concerned about Elena Kagan’s “extraordinary recusal obligations,” as Ed Whelan put it. She was asked both at her hearings and in questions submitted for the record about the extent of her involvement in Obamacare, with an eye to whether or not she would need to recuse herself when the case inevitably reaches the Supreme Court. We learned that she attended at least one meeting at which the legislation was discussed but that she was never asked to express an opinion “on the merits of the health care bill.” But that leaves a host of questions still unanswered: When was that meeting? What did she contribute? Who else was involved? What exactly was discussed? 

A FOIA request filed by CNS News has revealed 65 more pages of documents — but the questions have only intensified. For example, we now know that high-ranking officials in DOJ, led by Tom Perelli, had been meeting to plan a strategy to defeat Obamacare challenges starting as early as January, months before the legislation was passed. At that point Justice Stevens had not retired and Kagan had no reason to keep herself sequestered from any issues in order to preserve her. Was she present for any of those meetings? If not, did her delegates report back to her? If so, did she participate in the discussions? 

In light of these findings, the Judicial Crisis Network (of which I am chief counsel) filed its own FOIA request yesterday with the help of superstar FOIA expert Joe DiGenova, and we believe it is the most comprehensive request yet. Once the government gets around to responding to our request — CNS had to file a lawsuit to get a response to their own questions — we may be able to clear up some of the mystery surrounding then-Solicitor General Kagan’s involvement in Obamacare.

I plan to follow up on this issue with a series of posts examining the major documents uncovered by CNS and the questions they raise regarding both Kagan’s failure to disclose this information during the confirmation process and her eligibility to sit on a case determining the constitutionality of Obamacare.

I hope the most transparent administration in history will explain Kagan’s involvement with Obamacare, because the public deserves to know whether her impartiality might reasonably be questioned when the case reaches her desk once again, this time as a Supreme Court Justice.

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

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