Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has 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 (Judicial Watch v. U.S. Department of Justice (Case No. 11-426)). The constitutionality of the “individual mandate” in President Obama’s health care reform may end up before the U.S. Supreme Court.

Through its FOIA request, filed on June 19, 2010, Judicial Watch seeks the following information:

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.”