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‘The decision is monstrous.’ 

(Washington, DC) – Judicial Watch President Tom Fitton issued the following statement today regarding the Supreme Court’s ruling on the Patient Protection and Affordable Care Act, also known as Obamacare:

This Supreme Court majority rewrote Obamacare and then upheld its constitutionality. This decision is monstrous and upends the constitutional limits on federal power. That the Chief Justice would join the Court’s liberal block to legislate from the bench is shocking. Instead of calling the law Obamacare, we can fairly call it “Robertscare.”

Justice Kagan’s controversial decision to participate in this case despite unanswered questions about her role in defending Obamacare while working in the Obama administration also taints the High Court’s decision.

The Court’s decision will contribute to the public’s concern that our government is out of control and acting without constitutional authority. The rule of law suffered a stinging blow today.

On February 13, 2012, Judicial Watch filed an amicus curiae brief with the High Court challenging the constitutionality of Obamacare, specifically the “individual mandate.” In its brief Judicial Watch maintained that the “individual mandate” provision of Obamacare, which requires every American citizen to purchase health care insurance or pay a penalty, is unconstitutional – whether considered under Congress’ commerce power or taxing power:

Petitioners are trying to defend a provision in an act passed by Congress that exceeds its enumerated powers. Though Congress enacted this provision under the Commerce Clause, Congress’ power under the clause is not broad enough to compel Americans to engage in commerce by purchasing a particular product. Though Petitioners try to rescue the provision by arguing that it is valid under Congress’ taxing power even if it is invalid under Congress’ commerce power, a provision of an act that is not a tax may not be construed as a tax merely to save it from being declared unconstitutional.

Judicial Watch further argued that if the Supreme Court affirmed the constitutionality of the individual mandate, “it must be willing to hold that Congress’ powers under the Commerce clause are plenary and unlimited, for there remains no principled way to limit Congress’ power if it is stretched as far as Petitioners (the Obama administration) ask.”

Judicial Watch also uncovered documents detailing Supreme Court Justice Elena Kagan’s role in Obamacare discussions when she served as President Obama’s Solicitor General.

Author of Law Now Before the Supreme Court: “Instead of enforcing the law, the Obama administration does the opposite, by encouraging further law breaking.”

(Washington, DC) – Judicial Watch, the group that investigates and fights government corruption, announced today that Judicial Watch client, former Arizona State Senate President Russell Pearce, will testify before the Senate Judiciary Committee Subcommittee on Immigration, Refugees and Border Security. The hearing, scheduled for Tuesday, April 24, 2012, is entitled, “Examining the Constitutionality and Prudence of State and Local Governments Enforcing Illegal Immigration Law.”

Senator Pearce is the author and driving force behind Arizona’s illegal immigration law SB 1070, which affirms the legal and constitutional right of state and local governments to help enforce our nation’s illegal immigration laws. SB 1070 is now under consideration by the U.S. Supreme Court. The following are excerpts from Senator Pearce’s testimony that can be read in full here:

  • “…the illegal alien problem is a critical issue, not only in Arizona, but across the country. The adverse effects of illegal immigration ripple throughout our society. In addressing this problem, we must begin by remembering that we are a nation of laws. We must have the courage – the fortitude – to enforce, with compassion but without apology, those laws that protect the integrity of our borders and the rights of our citizens from those who break our laws. SB1070, in full accordance with federal law, removes the political handcuffs from state and local law enforcement.
  • The invasion of illegal aliens we face today – convicted felons, drug cartels, gang members, human traffickers and even terrorists – pose one of the greatest threats to our nation in terms of political, economic and national security.
  • Yet, instead of enforcing the law, the Obama administration does the opposite, by encouraging further law breaking. Under federal law “Sanctuary Policies” plainly are illegal. But the Obama administration does not sue those cities that are openly in violation of federal law for having these illegal sanctuary policies. Instead, it chooses to sue Arizona for enforcing the law, protecting our citizens, protecting jobs for lawful residents, and protecting taxpayers and the citizens of this Republic in attempting to secure our borders.

On February 13, 2012, Judicial Watch filed an amicus curiae brief with the Supreme Court on behalf of Senator Pearce regarding SB1070.  The brief can be read in its entirety here. Judicial Watch filed a separate brief on behalf of State Legislators for Legal Immigration (SLLI).  The amicus curiae brief on behalf of SLLI was joined by 29 legislators from 20 states.

“We are proud to stand with former State Senator Pearce in support of the rule of law,” said Judicial Watch President Tom Fitton. “The Obama administration has failed to abide by its constitutional mandate to secure the border. As a result states are left to defend themselves against a flood of illegal aliens coming across our border. The SB 1070 law is both lawful and necessary to local law enforcement in order to protect American citizens and enforce our nation’s immigration laws.  We hope and expect that the Supreme Court will uphold SB1070 and reaffirm the rule of law in immigration matters.”

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.

Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has obtained three new documents that provide additional information about Supreme Court Justice Elena Kagan and the Affordable Care Act (also known as Obamacare) while she served as solicitor general. Justice Kagan has said she was not actively involved in the Department of Justice (DOJ) discussions regarding Obamacare. Moreover, the Supreme Court justice did not recuse herself from the High Court decision in April 2011 not to “fast-track” for Supreme Court review Virginia’s lawsuit challenging Obamacare.

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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.

Judicial Watch, the public interest organization that investigates and prosecutes government corruption, announced today that it filed a petition on October 27, 2011, with the United States Supreme Court on behalf of former Federal Reserve employee Vern McKinley asking the High Court to review a lower court ruling validating the Federal Reserve’s decision to withhold documents about its $29 billion bailout of Bear Stearns (Vern McKinley v. Board of Governors of the Federal Reserve System (No. 11-544)).

At issue in this Freedom of Information Act (FOIA) lawsuit is whether or not the federal government can withhold documents under the deliberative process privilege of FOIA Exemption 5 without demonstrating that the release of the documents would result in specific harm to government agency decision-making.

The United States District Court and the United States Court of Appeals previously ruled in favor of the Federal Reserve and dismissed Mr. McKinley’s lawsuit. However, as Judicial Watch argued in its Supreme Court petition on behalf of Mr. McKinley, these rulings are a departure from Supreme Court precedent and FOIA law:

Despite the plain language of Exemption 5 and this Court’s precedent, the D.C. Circuit has created a different, relaxed two-prong test that a government agency must satisfy to withhold material in the FOIA context…

…By removing the requirement that a government agency must make a specific showing of harm under the deliberative process privilege of Exemption 5, the D.C. Circuit has created a sweeping exemption, causing the FOIA to become more of a withholding statute than a disclosure statute. Petitioner therefore requests that this Court grant certiorari to affirm its reading of Exemption 5 to incorporate the common law deliberative process privilege and to dispose of the different, relaxed test created by the D.C. Circuit.

The Bear Stearns lawsuit, originally filed by Mr. McKinley in July 2009, seeks records related to the Board’s unprecedented act to authorize the Federal Reserve Bank of New York (FRBNY) to provide “temporary emergency financing” to The Bear Stearns Companies, Inc., on March 14, 2008. Specifically, the Board authorized the FRBNY to extend a “nonrecourse loan” to JP Morgan, which in turn provided the financing to Bear Stearns.

Mr. McKinley specifically seeks “supporting memos and other information” that the Board used to justify its decision. In response to Mr. McKinley’s request, the Board produced only 48 pages in their entirety and withheld 190 pages in their entirety or in part under Exemption 5.

“Never in American history has so much taxpayer money been spent with so little oversight or explanation. Mr. McKinley believes the American people deserve an explanation from the Federal Reserve about its secretive and massive bailouts – which are ongoing. But the Federal Reserve, and the Obama administration, are abusing the law and withholding documents without proper justification. We hope the Supreme Court overturns the erroneous lower court decision that, if left standing, could eviscerate the FOIA law and the public’s right to know what its government is up to,” stated Judicial Watch President Tom Fitton.

Judicial Watch Files Amicus Brief on Behalf of Arizona State Legislature in Support of State of Arizona Supreme Court Petition

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Washington, DC — September 15, 2011


Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has filed an amicus curiae (friend of the court) brief with the U.S. Supreme Court on behalf of the Arizona State Legislature, supporting Arizona’s petition to the Supreme Court to review the Obama administration’s lawsuit against SB 1070, Arizona’s illegal immigration enforcement law. On April 11, the U.S. Court of Appeals for the Ninth Circuit upheld an injunction against enforcement of some of the law’s provisions, prompting the State of Arizona’s petition. (State of Arizona and Janice K. Brewer, Governor of the State of Arizona, v. United States (No. 11-182)).
The Arizona State Legislature, which is now a defendant in the Obama administration lawsuit, argues that SB 1070 is completely consistent with federal law:

The [Arizona] Legislature invoked its well established police powers in crafting SB 1070, for the purpose of protecting the people of Arizona. Rather than welcoming the Legislature’s enactment, the United States sued Arizona.Contrary to the view of the United States, not every state action related to aliens is preempted by federal law. …Only the determination of who should or should not be admitted into the country, and the conditions under which that person may remain, is the regulation of immigration.Accordingly, the Legislature enacted SB 1070 in reliance on the principle that it had authority to utilize well-established police powers in areas touching on immigration… 

The Arizona Legislature also maintains the four provisions put on hold by the lower courts should be reinstated, as the provisions would “significantly assist Arizona’s effort to protect its citizens from the adverse effects of illegal immigration.” Specifically, these provisions:

  • Provide additional guidance to Arizona law enforcement officers as to how to interact with individuals who may not be lawfully present. [Section 2(B).]
  • Utilize ordinary state police powers to create state criminal penalties for the failure to comply with federal law. [Section 3.]
  • Invoke Arizona’s broad authority to regulate employment under its police powers to protect its economy and lawfully resident labor force from the harmful effects resulting from the employment of unlawfully present aliens. [Section 5(C)]
  • Re-emphasize Arizona law enforcement officers’ pre-existing warrantless arrest authority by authorizing a warrantless arrest of an individual who has already been determined to have committed a public offense that makes him removable. [Section 6.]

“The Arizona State Legislature had the right to pass laws to protect its citizens from the scourge of illegal immigration,” said Tom Fitton, President of Judicial Watch. “The Arizona legislature crafted SB 1070 in a manner completely consistent with federal law. The Obama Justice Department should do its job and start enforcing illegal immigration laws instead of attacking states that are lawfully attempting to deal with the problems of rampant illegal immigration. The Obama administration’s lawless approach to illegal immigration is a crisis that must be addressed. We hope the U.S. Supreme Court accepts the State of Arizona’s petition, protects the rule of law and upholds the rights of the States to protect its citizens.”“States have an inherent duty under law and the Constitution to protect their citizens from those who break our laws. I pray the Supreme Court honors states’ inherent authority and right under the police powers and supports Arizona in the protection of our state from the Obama administration, who has sided with foreign governments against our state and our citizens. The Obama administration’s attack on our state’s sovereign right to defend itself from the illegal alien invasion is unconscionable,” added Arizona State Senate President Russell Pearce. “Already, the enacted provisions of SB 1070 have helped reduce crime significantly and led to a mass exodus of illegal aliens from our state. I know President Obama needs votes from the open borders crowd and those who benefit from this invasion, and doesn’t want the immigration laws enforced. He has made that abundantly clear by his recent actions to reward those who have broken our laws. He has refused to protect American jobs and the rights of our citizens — Arizona will continue to take common sense steps to protect its own citizens and our border.”Arizona Governor Jan Brewer signed SB 1070 into law on April 23, 2010. On July 6, 2010, the Obama Justice Department filed a lawsuit challenging the law and requested a preliminary injunction to prevent the law from being enforced (USA v. The State of Arizona, et al., No. 10-1413). On July 28, 2010, U.S. District Court Judge Susan Bolton allowed key provisions of the law to be enacted, while granting the Obama administration an injunction on other provisions until the Court could determine whether these provisions are constitutional. On April 11, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s preliminary injunction.Judicial Watch filed a “Motion to Intervene,” on February 11, 2011, on behalf of the Arizona Legislature with the U.S. District Court for the District of Arizona stating: “The Legislature…has a paramount interest in seeing that [SB 1070’s] enactment is upheld.” U.S. District Judge Susan R. Bolton granted the motion on April 5, 2011, over the objections of the Obama Justice Department. Judicial Watch also represented Arizona State Senate President Russell Pearce, the author of SB 1070, in the Obama administration’s legal action against the law.

Following Mexico’s written orders, President Obama has asked the Supreme Court to halt the execution of an illegal immigrant convicted of bludgeoning, raping and murdering a teenage girl because it would do “irreparable harm” to U.S. interests abroad.Mexico has no death penalty and refuses to extradite criminals who flee the U.S. unless prosecutors assure they won’t seek capital punishment. Over the years a number of hardcore felons—including child murderers and rapists—who would ordinarily face death in the U.S. havefled south of the border. Mexican authorities only return them if prosecutors vow not to pursue death.As per a Mexican government directive, Obama wants Texas to stop this week’s scheduled execution of 38-year-old Humberto Leal, who was convicted nearly two decades ago and has lost a myriad of appeals. Leal has lived in the U.S. illegally since he was a toddler and in 1994 kidnapped, raped and murdered a 16-year-old girl in San Antonio.Besides opposing capital punishment, Mexican officials claim that Leal’s rights were violated because San Antonio police failed to tell him that, as a Mexican national, he could contactMexico’s consular officials. Ironically, the San Antonio Police Department has a don’t-ask-don’t-tell mandate forbidding officers from inquiring about suspects’ immigration status. Evidently the city’s sanctuary policy, backed by Mexico because it prevents racial profiling, hurt this particular illegal immigrant.The bottom line remains that Leal confessed and powerful DNA evidence and witness testimony proved his guilt beyond a reasonable doubt. The illegal immigrant received great legal representation and got a fair trial, according to appellate decisions upholding the conviction. In fact, the U.S. Court of Appeals for the Fifth Circuit found that Leal was“overwhelmingly” guilty and that a new trial would only produce the same outcome.Yet our commander-in-chief is bending over for our neighbor to the south and has asked the nation’s highest court to delay the execution until Congress can enact legislation to save Leal and foreign nationals like him facing death. The magic law, obviously crafted to appeaseMexico, was introduced a few weeks ago by the chairman of the Senate Judiciary Committee, Vermont Democrat Patrick Leahy.In a brief filed a few days ago by Obama’s solicitor general, the president asks the Supreme Court to stop Leal’s execution because it would cause “irreparable harm” to U.S. interest abroad and “would place the United States in irreparable breach of its international law obligation.” This will lead to “serious repercussions for United States foreign relations, law-enforcement and other co-operation with Mexico, and the ability of American citizens travelling abroad to have the benefits of consular assistance in the event of detention,” according to the brief.The White House filed the document and Democrats introduced legislation shortly after receiving a written mandate from Mexico. In a letter to Secretary of State Hillary Clinton, Mexican Ambassador Arturo Sarukhan demands that the “U.S. government support Mr. Leal’s request for a stay of execution in the U.S. Supreme Court.” Sarukhan also threatens to pull his country’s commitment to the U.S.-Mexico “bilateral agenda” if Leal dies and says another execution of a Mexican national will “undoubtedly affect public opinion in Mexico.”A few days after receiving the Mexican directive, Clinton and Attorney General Eric Holder thanked Leahy in writing for his “extraordinary efforts to enact legislation” that could halt Leal’s execution and, in turn, offer an “essential legislative solution” to a bigger issue. In a three-page letter to Leahy, Clinton and Holder point out that his measure is “particularly important” to the nation’s “bilateral relationship with Mexico.” Both letters and Leahy’s billare attached as exhibits to the White House brief.

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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Washington, DC — May 18, 2011

Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has obtained documents suggesting Supreme Court Justice Elena Kagan helped coordinate the Obama administration’s legal defense of the Affordable Care Act (also known as Obamacare) while she served as Solicitor General. Kagan has said she was not involved in Department of Justice (DOJ) preparations for legal challenges to Obamacare. Moreover, the Supreme Court justice did not recuse herself from the High Court decision in April 2011 not to “fast-track” for Supreme Court review Virginia’s lawsuit challenging Obamacare.
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. The lawsuits are now both before the U.S. District Court for the District of Columbia. The documents referenced in this release were first produced in the Media Research litigation.)According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:

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.

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