As High Court Prepares to Hear Oral Arguments in Obamacare Litigation, Judicial Watch Seeks Kagan’s Solicitor General Calendars, Agenda and Phone Logs
(Washington, DC) – Judicial Watch, the organization that investigates and fights government corruption, announced today that it filed a lawsuit against the Obama Department of Justice (DOJ) seeking access to records related to U.S. Supreme Court Associate Justice Elena Kagan’s role in Obamacare discussions while she served as President Obama’s Solicitor General (Judicial Watch v. U.S. Department of Justice (No. 1:12 –cv-00277)).
Previous documents uncovered by Judicial Watch have raised concerns about whether Justice Kagan should recuse herself from considering the Obamacare litigation when it goes before the High Court in March 2012.
Pursuant to its original Freedom of Information Act (FOIA) request submitted to the DOJ’s Office of Information Policy and the Office of Solicitor General on December 7, 2011, Judicial Watch seeks access to the following information to help to determine if Justice Kagan and her top deputies participated in Obamacare meetings and phone calls:
All calendars, schedules, phone logs and agenda for each of the following individuals: (1) Elena Kagan; (2) Neal Katyal; (3) Edwin Kneedler; (4) Malcolm Stewart; and (5) Michael Dreeben.
Neal Katyal, Edwin Kneedler, Malcolm Stewart and Michael Dreeben all served as Deputy Solicitors General under Kagan. The time frame for this request is September 1, 2009, through August 31, 2010.
The Obama administration was required by law to respond to the FOIA request by January 25, 2012. However, to date, the Obama administration has neither released any records, nor provided an explanation as to why records should be withheld, nor given a date when a response to Judicial Watch’s FOIA request will be forthcoming.
Justice Kagan has said that she was not “substantially” involved in the DOJ discussions regarding Obamacare’s constitutional or litigation issues. The White House, despite repeated inquiries, has refused to confirm to Judicial Watch that Justice Kagan was “walled off” from Obamacare defense discussions while at the DOJ.
Emails previously obtained by Judicial Watch suggest Kagan and staff from her Solicitor General’s office may have participated in discussions pertaining to the legal defense of Obamacare. Other records show then-Solicitor General Kagan commenting excitedly on the passage of Obamacare. (Judicial Watch obtained the documents pursuant to a FOIA lawsuit filed on February 24, 2011. This lawsuit had been consolidated with a similar FOIA lawsuit first filed against the DOJ by the Media Research Center.)
Responding to inquiries from Congress for records detailing Justice Kagan’s role in Obamacare discussions, Attorney General Eric Holder said in December 2011 that he has “separation of powers concerns” about releasing them, according to Politico.
“This is no time for the Obama administration to stonewall and obfuscate. We hope the court will force the Obama administration to respond to our request in a manner consistent with federal law,” said Judicial Watch President Tom Fitton. “The American people deserve to know how deeply involved Elena Kagan and her top deputies were in shaping the Obama administration’s legal defense of Obamacare. The integrity of the courts requires a full airing of those facts before she participates in ruling on a matter she may have helped prepare for litigation. There is more information at the Justice Department but clearly Eric Holder intends to run out the clock.”
On February 13, 2012, Judicial Watch filed an amicus curiae brief with the United States Supreme Court challenging the constitutionality of Obamacare, specifically the “individual mandate.” The Supreme Court has scheduled oral arguments for the Obamacare case on March 26, 27, and 28, 2012.
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11 am — 12:30 pm ET
Judicial WatchMain Conference Room
Edward Whelan, President, Ethics and Public Policy Center
Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network
Ronald D. Rotunda, Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University
Russell Wheeler, Visiting Fellow in Governance Studies, Brookings Institution
Tom Fitton, President, Judicial Watch
The event will be broadcast live at https://www.judicialwatch.org/live
*(near NASA headquarters, one block from Federal Center Southwest Metro Station)
A mult box will be available.
Judicial Watch filed a Freedom of Information Act (FOIA) lawsuit against the Obama Department of Justice (DOJ) to obtain documents detailing Supreme Court Justice Elena Kagan’s participation in discussions related to the Patient Protection and Affordable Care Act of March 23, 2010, also known as Obamacare, while she served as U.S. Solicitor General to determine if she will have a conflict of interest if the constitutionality of the “individual mandate” in President Obama’s health care reform ends up before the U.S. Supreme Court.
Because of similar litigation filed by the Media Research Center, this case was consolidated with Media Research Center v. U.S. Department of Justice (No. 10-2013) on April 22, 2011.
Kagan Directs Staff to “Be Involved” in Crafting Defense of Obamacare; Scolds Justice Colleague on the Issue of Her Participation: “This Needs to be Coordinated…You Should not Say Anything about This before Talking to Me.”
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Subject: Re: Health Care Defense:Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]
On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “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.”In another email exchange that took place on January 8, 2010, Katyal’s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. “Could you figure out the right person or people for that?” Hauck asked. “Absolutely right on. Let’s crush them,” Katyal responded. “I’ll speak with Elena and designate someone.”However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal position changed significantly as he began to suggest that Kagan had been “walled off” from Obamacare discussions.For example, the documents included the following May 17, 2010, exchange between Kagan, Katyal and Tracy Schmaler, a DOJ spokesperson:
Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: “Has Elena been involved in any of that to the extent SG ]Solicitor General’s] office was consulted?…Katyal to Schmaler: “No she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit.”Katyal (forwarded to Kagan): “This is what I told Tracy about Health Care.”Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”
Included among the documents is a Vaughn index, a privilege log which describes records that are being withheld in whole or in part by the Justice Department. The index provides further evidence of Kagan’s involvement in Obamacare-related discussions.For example, Kagan was included in an email chain (March 17–18, 2010) in which the following subject was discussed: “on what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” The subject of the email was “Health Care.” Another email chain on March 21, 2010, entitled “Health care litigation meeting,” references an “internal government meeting regarding the expected litigation.” Kagan is both author and recipient in the chain.The index also references a series of email exchanges on May 17, 2010, between Kagan and Obama White House lawyers and staff regarding Kagan’s “draft answer” to potential questions about recusal during the Supreme Court confirmation process. The White House officials involved include: Susan Davies, Associate White House Counsel; Daniel Meltzer, then-Principal Deputy White House Counsel; Cynthia Hogan, Counsel to the Vice President; and Ronald Klain, then-Chief of Staff for Vice President Biden. The DOJ is refusing to produce this draft answer.The Vaughn index also describes a March 24, 2010, email exchange between Associate Attorney General Beth Brinkmann and Michael Dreeben, Kagan’s Deputy Solicitor General, with the subject header, “Health Care Challenges:” “…I had a national conference call with the Civil Chiefs. A memo also went out the day before. I am forwarding right after this. Let’s discuss if you have more ideas about what to do.”As reported by CNS News:
In the questionnaire she filled out for the Senate Judiciary Committee during her confirmation process, Kagan said she would abide by the “letter and spirit” of 28 U.S.C. 455 in deciding whether she felt compelled to recuse herself as a Supreme Court Justice from any case that came before the High Court.According to the law, a ‘justice … shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.’ It further says any justice ‘shall also disqualify himself … [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.’
“Any reasonable person would read these documents and come to the same conclusion: Elena Kagan helped coordinate the Obama administration’s defense of Obamacare. And as long as the Justice Department continues to withhold key documents, the American people won’t know for sure whether her involvement would warrant her recusal from any Obamacare litigation that comes before the High Court,” said Judicial Watch President Tom Fitton.
Should Justice Kagan Recuse Herself if Obamacare Reaches Supreme Court?
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All records of communication, briefing materials and/or legal opinions concerning the constitutionality of the Patient Protection and Affordable Care Act of March 23, 2010.Any and all records of communications between the Office of Solicitor General and any of the following entities concerning the constitutionality of the Patient Protection and Affordable Care Act: (a) The Executive Office of the President; (b) The Department of Justice Office of Legal Counsel; and (c) The Office of Attorney General.
As Judicial Watch notes in its lawsuit, the Patient Protection and Affordable Care Act “is one of the most controversial pieces of legislation in U.S. history. It has already been the subject of much litigation, and the constitutionality of the Act will likely be decided by the United States Supreme Court within the next two years.” On January 31, 2011, federal Judge Roger Vinson ruled Obamacare unconstitutional in a consolidated lawsuit that involved 26 states challenging the law due to the requirement that all Americans must purchase health insurance.The AP reported in “Sen. Hatch: Kagan Should Sit Out Health Care Case” that while serving in her previous capacity as U.S. Solicitor General, Justice Kagan may have been involved in discussions related to Obamacare, including the anticipated legal challenges to the law. Justice Kagan has already admitted she “attended at least one meeting where the existence of the litigation” was mentioned. Senator Orrin Hatch, noting the conflict of interest, has called upon Justice Kagan to recuse herself when the law ultimately reaches the nation’s High Court.Judicial Watch filed its original FOIA request on June 18, 2010. The DOJ acknowledged receipt of the request on July 8, 2010. However, to date, the DOJ has failed to release any documents or demonstrate why documents must be withheld. The DOJ has not indicated when responsive documents may be forthcoming.“U.S. Supreme Court rulings on Obamacare may be some of the most important in the nation’s history. With so much at stake, this is no time for gamesmanship and secrecy by the Obama Justice Department. This is a simple question and the American people deserve a straight answer: What role did Elena Kagan play in Obamacare discussions while she was at the Justice Department? The Justice Department’s silence is deafening,” stated Judicial Watch President Tom Fitton. “Leftists are running a coordinated campaign to pressure Justice Thomas to recuse himself from any Obamacare cases. That there are no facts warranting such a recusal is no bar to the left-wing effort to politicize the High Court to protect Obamacare. So it is ironic that the only set of facts that might warrant a recusal in the matter relates to Justice Kagan and is being unlawfully withheld by the Obama administration that appointed her.”