An internal memorandum from the Office of the Solicitor General (OSG) reveals that Justice Elena Kagan “substantially participated” in a health care case in San Francisco in which the Justice Department argued over the effect of the Patient Protection and Affordable Care Act (PPACA). This raises grave new doubts about the appropriateness of Kagan’s participation as a justice in the Obamacare lawsuit scheduled to be heard by the Supreme Court in March.
There has been a lot of debate over Kagan’s direct involvement in defending the PPACA while she was still the Solicitor General. Despite emails showing her initial involvement in formulating DOJ strategy to defend the legislation, Kagan has claimed that she had no “substantial involvement” (even though that is not the applicable standard). Attorney General Eric Holder claims Kagan was “walled off” from the case while her Supreme Court nomination was pending.
By May 2010, emails show that Kagan was well aware of the possible conflict, writing that the OSG’s message pertaining to her involvement in the matter “needs to be coordinated.”
When asked if his superior had played a role in consultations about defending the law, Neal Katyal, her deputy, wrote: “No, she has never been involved with any of it.” But email traffic suggests that far from being completely “walled off” from the process, Kagan did indeed participate in efforts to defend the PPACA.
A partially redacted email from Katyal to other OSG personnel states that “Elena would definitely like OSG to be involved” in preparing the PPACA defense and that he would “bring in Elena as needed.” Two months later, after being invited by Associate Attorney General Tom Perrelli to a meeting of the President’s health care policy team to “help us prepare for litigation,” Katyal forwarded the message to Kagan, writing “I think you should go, no? I will, regardless, but I feel like this is litigation of singular importance.” Kagan’s response: “What’s your phone number?”
While there is at present no direct evidence that Kagan attended the meeting in question, other emails indicate her knowledge and participation in OSG legal strategy over the PPACA. For instance, when the Justice Department became aware in March 2010 that the Landmark Legal Foundation, headed by Mark Levin, was preparing litigation over the “Slaughter rule” that would have “deemed” the health care law to have passed the House through the passage of another unrelated bill, Katyal cc’d Kagan on a message admitting that OSG “could be in court very soon” and must have its reply brief “ready to go.” As further evidence of Kagan’s knowledge of the underlying legal issues of the potential case, when asked whether she had read Judge Michael McConnell’s op-ed on the unconstitutionality of the Slaughter rule, she replied: “YES – HE IS GETTING THIS GOING.”
But it is Kagan’s involvement in another case, Golden Gate Restaurant Association v. San Francisco, which reveals still more about the extent to which Kagan formulated the government’s legal opinion regarding the PPACA and why she should seriously consider disqualifying herself from the pending Supreme Court case.
In 2006, San Francisco enacted its own version of Obamacare. The local ordinance was intended to provide health care for uninsured residents and to force employers to make minimum “health care expenditures” on behalf of covered employees. The Golden Gate Restaurant Association filed a federal lawsuit claiming the new ordinance was preempted by federal law, the Employee Retirement Income Security Act of 1974 (ERISA).
While the restaurant association won its lawsuit at the district court level, it lost in the Ninth Circuit Court of Appeals. The association filed a petition for certiorari with the Supreme Court, asking the court to review the case. The Supreme Court denied certiorari, but only after it requested the Solicitor General to express the views of the United States. In May of 2010, the OSG filed an amicus brief telling the Supreme Court that it should not take the case.
The amicus brief contains an extensive discussion of the Obamacare legislation. In fact, the OSG’s arguments on the PPACA take up at least six pages—almost half of the 13 pages of “Discussion” in the brief. The OSG informs the court that the Department of Labor decided….
Read more from Hans von Spakovsky at The Foundry Blog.
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