New documents suggest Supreme Court Justice Elena Kagan involved with crafting legal defense of Obamacare

Amanda Carey Contributor
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Emails between Supreme Court Justice Elena Kagan and members of the Obama Administration reveal she was more involved with President Obama’s health-care law than was disclosed previously. The documents likely will lead to a revival of questions about whether the Kagan should recuse herself from future cases.

Specifically, the documents show that Kagan was involved with crafting the legal defense of the Affordable Care Act in her role as solicitor general, before her appointment to the bench. The Media Research Center and Judicial Watch obtained the documents through a Freedom of Information Act (FOIA) lawsuit that was filed in February 2011.

In an email dated Jan. 8, 2010, then-Deputy Solicitor General Neal Katyal sent an email to Senior Counsel Brian Hauck and Deputy Attorney General Thomas Perrelli that indicates Kagan played a key role in coming up with a legal defense.

“Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues … we will bring Elena as needed.”

In an email on March 21, 2010, Katyal urged Kagan to attend a health-care litigation meeting on defending the law. “I think you should go, no?” wrote Katyal. “I will, regardless, but feel like this is litigation of singular importance.”

The documents also show that once Kagan was nominated to the Supreme Court, she and Katyal immediately switched course to distance her from discussions about the legislation.

On May 17, 2010, for example, Tracy Schmaler, a Department of Justice spokesperson wrote to Katyal, “Has Elena been involved in any of that to the extent SG office was consulted … ?”

“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,” was Katyal’s response. He then forwarded the correspondence to Kagan, saying “This is what I told Tracy about Health Care.”

Kagan’s response: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”

Other email chains between Kagan, White House lawyers and Vice President Joe Biden’s then-Chief of Staff Ronald Klain show a coordinated effort on how to respond to questions about the health-care law that may have arisen in the confirmation hearings.

According to Judicial Watch President Tom Fitton, the Department of Justice is conducting an ongoing investigation that could uncover more documents concerning Kagan’s involvement in the health-care defense.

“I was surprised by these documents considering her testimony,” Fitton told The Daily Caller. “And I suspect some senators on the Judiciary Committee ought to be surprised.”

“It certainly doesn’t look good,” he added. “The Obama administration appointed Kagan. It was well known this appointment was key in terms of providing a defense of the health-care law.”