Emails previously obtained by Judicial Watch suggest that, during Justice Kagan’s tenure as Solicitor General, the Office of the Solicitor General had been more involved in the legal defense of the PPACA than had previously been disclosed.  Late last year, another set of records were produced that included an email showing what appeared to be then-Solicitor General Kagan’s excitement and support for the passage of the PPACA.

In the letter, Mr. Fitton notes, “The failure of the Justice department to produce requested records in a timely manner, the dribbling out of requested records over time, the redaction and withholding of other records, and the refusal to respond to requests for records and information from several members of Congress have contributed to the substantial impression that additional details about your tenure as Solicitor General and the enactment and subsequent legal defense of the PPACA are being withheld from the American people.  However, [as] the Court ultimately rules on the various legal challenges to the PPACA, it would be extraordinarily unfortunate if the Court’s decision were overshadowed by controversy over your participation in the matter.  It would leave a cloud hanging over the Court’s decision and could undermine public confidence in the impartiality and integrity of the Court as an institution.”

The letter states, “Judicial Watch is not calling on you to recuse yourself from the PPACA litigation at this time, just as Judicial Watch did not call on Justice Scalia to recuse himself from the litigation involving the National Energy Policy Development Group (‘NEPDG’) – to which Judicial Watch was a party – in 2004.  When a controversy arose during the course of the NEPDG litigation over whether Justice Scalia should recuse himself from that matter, Justice Scalia issued an opinion stating:  ‘The decision whether a judge’s impartiality can ‘reasonably be questioned’ is to be made in light of the facts as they existed, and not as they were surmised or reported.”  Justice Scalia then provided a comprehensive recitation of the facts ‘as they existed,’ not as they were ‘surmised or reported,’ and an articulation of the reasoning behind his decision not to recuse himself.”

Mr. Fitton further notes, “During your confirmation process, you wrote that you would ‘consider carefully the recusal practices of current and past Justices’ as well as consult with your colleagues if questions about recusal in particular cases arose.   Judicial Watch believes that it would be of substantial benefit to the Court’s consideration of the legal challenges to the PPACA if, like Justice Scalia in the NEPDG matter, you were to address the facts surrounding your tenure as Solicitor General and the enactment and subsequent legal defense of the PPACA as they ‘existed,’ not as they are being ‘surmised or reported,’ as well as provide an articulation of your reasoning behind any decision regarding recusal.”

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 Department of Justice (DOJ).

The Judicial Watch letter also references is the lack of cooperation by the DOJ in responding to Freedom of Information Act (FOIA) requests previously submitted by Judicial Watch for records pertaining to Justice Kagan and the PPACA.

On February 21, 2012, Judicial Watch filed another FOIA lawsuit against the DOJ, seeking access to calendars, schedules, and phone logs for Justice Kagan and her deputies inside the Solicitor General’s office.

“We hope that Justice Kagan will give serious consideration to addressing this recusal controversy, so as to provide greater transparency and increase public confidence in the impartiality and integrity of the Supreme Court,” stated Judicial Watch President Tom Fitton.

This is crazy; a semi-secret tax so the feds have cash to pay bureaucrats to examine everyone’s health records and, in turn, the government can save money by cutting back on care. The official plan, as noted by a national news wire this week, is to conduct research to find out which drugs, medical procedures, tests and treatments work best. It’s part of a “little-known provision” of the president’s socialist takeover of the nation’s healthcare system.

Who will conduct this valuable research? A new quasi-governmental agency (Patient-Centered Outcomes Research Institute or PCORI) created by Obamacare to provide information about the “best available evidence to help patients and their health care providers make more informed decisions.” PCORI claims its research is intended to give patients a better understanding of the prevention, treatment and care options available.   

To conduct this valuable work, PCORI needs cash. That’s where the new, little-known tax kicks in. Beginning in 2012, Uncle Sam will charge insurance companies a new fee to fund the PCORI’s research. The tax will be $1 per person in 2012 and will double in 2013 and increase with inflation in the following years. Insurers will soon receive guidance on the new tax from the Internal Revenue Service (IRS).

Obama has already given this sort of medical effectiveness research a big chunk of change. In fact, his disastrous 2009 economic stimulus bill included more than $1 billion for this kind of work through a different government agency. When his Affordable Care Act passed, the newly created PCORI became the official center to find ways to more “effectively and appropriately” prevent, diagnose, treat, monitor and manage health conditions.

Most Americans are opposed to Obama’s hostile takeover of the nation’s healthcare system and two separate federal courts—in Florida and Virginia—have ruled it unconstitutional. The Virginia ruling came in 2010 and the Florida decision, referred to as “another legal blow” by a mainstream newspaper, came last year. Here is the 2010 Virginia decision and the 2011 Florida ruling. The U.S. Supreme Court is scheduled to hear the case next March.

Judicial Watch has been a leader in comprehensively investigating Obamacare and has uncovered details related to secret healthcare meetings between powerful unions and Health Secretary Kathleen Sebelius, waivers to companies and unions exempting them from inconvenient provisions of the new law and the regulation and funding of Obamacare in general. Read about JW’s Obamacare work here.  

Judicial Watch has also obtained internal Justice Department documents that suggest Supreme Court Justice Elena Kagan helped coordinate the Obama Administration’s legal defense of the healthcare law while she served as Solicitor General. JW has long believed that Kagan could be Obama’s political operative on the Supreme Court. After all, she is a liberal activist with a thin resume, little legal experience and no judicial experience.

The following are highlights from the documents obtained by Judicial Watch pursuant to a Freedom of Information Act (FOIA) lawsuit filed on February 24, 2011. (Judicial Watch’s lawsuit has been consolidated with a similar FOIA lawsuit that had been first filed against the DOJ by the Media Research Center.):

• An October 13, 2009, exchange between Kagan and former Deputy Solicitor General Neal Katyal. Katyal informs Kagan, “We just got Snowe on health care,” referring to Senator Olympia Snowe (R-ME). (The bulk of the email exchange reflects a discussion about Kagan, and also provides instructions regarding a hiring decision within the agency, although the nature of the position is unclear. When Katyal asks if Kagan wants to handle the hire via email or in person meeting, Kagan responds, “In person. I’ll call a meeting when I return.”)
• A March 21, 2010, email from Kagan to then-Senior Counselor for Access to Justice Laurence Tribe: “I hear they have the votes Larry!! Simply amazing…” Tribe responds, “So healthcare is basically done! Remarkable.”
• A March 16, 2010, email from Kagan to David Barron, then-acting head of the Justice Department’s Office of Legal Counsel, asked if he had seen an article by Michael McConnell published in the Wall Street Journal that discussed a strategy by Democrats to “‘deem’ ObamaCare into Law without voting.” “Did you seee [sic] Michael McConnell’s piece in the wsj?” Kagan writes in an email with the subject line “Health care q.” “YES, HE IS GETTING THIS GOING,” replied Barron.

“These new emails are bound to raise additional questions about whether Justice Kagan ought to participate in High Court deliberations on Obamacare. Certainly, if these documents were known at the time of her confirmation, there may have been quite a different Senate debate. The Obama Justice Department dumped these documents just before a holiday weekend, hoping they would go unnoticed. This slow-walking of documents out of the Obama Justice Department is scandalous and makes one wonder what other information they are sitting on,” said Judicial Watch President Tom Fitton.