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Barack Obama Elena Kagan SC

Documents uncovered by a legal watchdog group prove Supreme Court Justice Elena Kagan was involved in the Obama administration’s legal defense of the Patient Protection and Affordable Care Act, otherwise known as “ObamaCare.”

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Judicial Watch has released a number of administration communiqués that show Kagan, who was then Solicitor General, presided over the president’s response to lawsuits asserting the government health care bill is unconstitutional.

On January 8, 2010, Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, wrote to Kagan’s deputy, Neal Katyal, asking for the office’s assistance in “how to defend against the inevitable challenges to the health care proposals that are pending.” Three minutes later, Katyal replied, “Absolutely right on. Let’s crush them. I’ll speak with Elena and designate someone.” After Katyal volunteered, Kagan responded, “You should do it.”[1]

A few hours later, Katyal updated Hauck, writing, “Brian, Elena would definitely like OSG [the Office of Solicitor General] to be involved in this set of issues.” Katyal added,”I will handle this myself, along with an Assistant from my office, (Name RedactedBJ), and we will bring Elena in as needed.”(Emphasis added.)

The Justice Department continues to withhold a series of e-mails that would disclose Kagan’s exact role in the negotiations. However, it has turned over the Vaughn index, which describes the items being stonewalled in general terms. These include seven e-mails written from March 17-21, 2010. Kagan was copied on three e-mails that discuss “what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” Another four dealt with “expected litigation” against the health care law; Elena Kagan wrote one of the four being withheld.

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In the same week, Perrelli announced a White House meeting “to help us prepare for litigation.” Katyal wrote Kagan, “I think you should go, no?” Kagan ended the paper trail cold, responding, “What’s your phone number?”

This White House and its allies have a history of producing documents that airbrush high-level attendees out of controversial meetings. The Center for Public Integrity has declared the White House visitor logs are “riddled with holes.”

Once Kagan had been nominated for the High Court, Katyal decided Kagan had never been involved in the proceedings in the least.

One year ago yesterday, Justice Department spokeswoman Tracy Schmaler wrote an e-mail acknowledging Katyal was “point” (of reference) on defending ObamaCare, but asking him, “Has Elena been involved in any of that to the extent SG office was consulted?” Katyal responded, “No, she has never been involved in any of it. I’ve run it for the Office, and have never discussed the issue with her one bit.” (Does anyone innocent speak that way?) Katyal later insisted Kagan had been “walled off from Day One.”

After Katyal alerted Elena to the inquiry, a jittery Kagan jumped in, instructing Schmaler, “This needs to be coordinated. Tracy, you should not say anything about this before talking to me.”

This author noted in February that Barack Obama refused to produce documents revealing Elena Kagan’s role in defending ObamaCare. (Obama has long engaged in selectively enforcing the law on FOIA requests.) The reason is simple: without her vote, the signature bill of his presidency is likely to be found unconstitutional.

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