Did Kagan Tell Deputy She Assigned to Health-Care Case Administration Should Win It?

(CNSNews.com) - To an ordinary American it might seem like an obvious question with an obvious answer.

When Solicitor General Elena Kagan--whose job was to defend the administration’s position in federal court cases--assigned her top deputy to handle the anticipated legal challenges to the health-care bill that President Barack Obama was pushing through Congress in 2010 did she indicate to that deputy that the administration should defeat those challenges?

Common sense might say: Of course.

But if the common sense answer were in fact the true answer, then the plain sense of the law governing recusals by Supreme Court justices would seem to require Kagan to recuse herself from judging the legal challenges to President Obama’s health-care law.

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 determining whether she needed to recuse herself from any case as a Supreme Court justice.

This law says that any “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.”

If Kagan indicated to the subordinate she assigned to handle the health care case that the administration should win it, might it not then be reasonable to question her “impartiality” when that case comes before her on the Supreme Court?

If Kagan discussed the “merits” of the health care case with the subordinate she assigned to it, would it not be in keeping with the “letter” of the law--not to mention with its spirit--for her to recuse herself?

But Kagan told the Senate Judiciary Committee, in writing, that she never was asked and never offered her views on the underlying legal or constitutional issues related to any proposed health care legislation--including the health-care reform law signed by President Obama--and that she never was asked nor offered her views on the underlying legal or constitutional issues related to potential litigation resulting from any proposed health care legislation.

The Justice Department will not respond to similar questions CNSNews.com has posed to Acting Solicitor General Neal Katyal--citing as its reason for not answering ongoing litigation over a CNSNews.com Freedom of Information Act (FOIA) request that seeks records relevant to whether Kagan ought to rescuse herself from the health-care case.

On Jan. 8, 2010, then-Solicitor General Kagan personally assigned Katyal, then the principal deputy solicitor general, to be the person in the Office of the Solicitor General (OSG) to handle the expected legal challenges to the health care bill. That same day Katyal had indicated in an email to DOJ colleague Brian Hauck—who worked in the associate attorney general’s office—that he hoped they would “crush” the legal challenges to the health-care bill.

Katyal also wrote Hauck that day that “Elena would definitely like OSG to be involved in this set of issues” regarding the expected health-care litigation and that Katyal would “bring in Elena as needed.”

Katyal has now signed legal briefs representing the Obama administration in the lawsuits brought against Obama’s health-care law by Florida and Virginia.

Among the questions CNSNews.com has put to Katyal that the Justice Department will not answer are:

--“Did you personally speak at any time that day [when Kagan assigned him to handle the expected legal challenges to the health-care bill] to Solicitor General Kagan about what the Justice Department viewed as the inevitable challenges to the health-care proposal or the department’s need to plan to defend against them?”

--“If you did speak to Solicitor General Kagan that day about the inevitable challenges to the health care proposal or the Justice Department’s need to start planning the administration’s defense against them, what did you say to her and what did she say to you?”

--“How did you know on that day that Solicitor General Kagan ‘definitely’ wanted her office involved in planning the administration’s treatment of the ‘set of issues’ involved in the inevitable challenges to the health-care proposal?”

--“Did you follow through on your statement in the email to Brian Hauck and ‘bring Elena in as needed’ in planning the administration’s treatment of the ‘set of issues’ involved the administration’s defense against the inevitable challenges to the health care proposals?”

--“Did you ever in any way communicate to Solicitor General Kagan, as you did to Brian Hauck in your Jan. 8, 2010 email, your desire to ‘crush’ or otherwise defeat the challenges to the health-care proposal? If so, how did Solicitor General Kagan respond?”

--“Did Solicitor General Kagan ever communicate to you a desire on her part for the administration to succeed in its defense against challenges to the health-care proposals?”

--“Did Solicitor General Kagan ever communicate to you a desire on her part for the administration to fail in its defense against challenges to the health-care proposals?”

--“Did you at any time communicate to your colleagues or subordinates in the Solicitor General’s office, or persons elsewhere in the administration, about what Solicitor General Kagan wanted them to do, or would like to see happen, in regard to legal challenges to the health-care proposals?”

The bases for these questions are facts revealed in a series of internal Justice Department emails the department released last month to CNSNews.com in partial response to the FOIA request CNSNews.com had filed in May 2010.

On Dec. 24, 2009, the Senate passed the health-care bill that President Obama later signed. A week later, the New York Times published an article reporting that Florida Attorney General Bill McCollum was considering a lawsuit to challenge the bill if it became law and that there were “nearly a dozen other states who have also threatened to sue over the mandate.” (Continue reading)