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.”
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 Redacted – BJ), 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.
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.
The justices will soon hear two legal challenges from the states of Virginia and Florida, which already cleared lower courts.
Federal statute 28 U.S.C. 455 demands that a judge must step aside “in any proceeding in which his impartiality might reasonably be questioned” or in which he (or she) “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”
By telling Katyal he “should do it,” Kagan appointed the point person who defended ObamaCare. Further e-mails from March 24 reveal Kagan was copied on the administration’s plan to coordinate with U.S. attorneys in fighting state lawsuits against ObamaCare. And she may have attended the administration’s meeting mentioned in the e-mail.
Frankly, it strains credulity to believe the president’s most important legal adviser provided no legal advice on this issue.
Obama knows the Constitution is “a charter of negative liberties. It says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.” He considers the Constitution“the fundamental flaw of this country that continues to this day.” To complete his revolution, he has packed the Supreme Court with justices sure to rule his way.
At present, the court is relatively evenly split between constitutionalists Antonin Scalia, Samuel Alito, Clarence Thomas, and John Roberts versus progressive revisionists Elena Kagan, Ruth Bader Ginsburg, Sonia Sotomayor, and Stephen Breyer. (Anthony Kennedy, the “swing vote,” regularly cites foreign law in place of the U.S. Constitution.)
Kagan is regarded as politically savvy. While clerking for ultra-liberal Supreme Court Justice Thurgood Marshall, Kagan urged Thurgood not to allow the Supreme Court to hear cases if she believed the court would rule against her, creating Originalist precedent. For example, she advised Marshall to refuse the case of a female prisoner who wanted the state to pay for her abortion. Kagan worried the court would rule against the woman, writing, “This case is likely to become the vehicle that this court uses to create some very bad law on abortion and/or prisoners’ rights.” At Harvard and elsewhere, Kagan has been known for her smooth handling of competing groups, working them around to her way of thinking.
Without Kagan, Obama loses at least one, and perhaps two, pivotal votes, and ObamaCare goes the way of the National Recovery Administration and the Agricultural Adjustment Act.
At a minimum, Kagan’s actions constitute “the appearance of impropriety.” Elena Kagan must recuse herself when the state challenges reach the High Court.
If she violates this federal statute, she should be impeached and removed from her seat.
Then again, one can hardly expect this from the same people who did not have the guts to keep her from being confirmed in the first place.
ENDNOTES:
1. Thomas Perrelli appears to have played a role in dropping the voter intimidation case against the New Black Panther Party. Katyal is currently acting as Kagan’s replacement.
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What is congress going to do with this data? If your senator confirmed this perjurer are they going to correct their idiocy?
It doesn't appear that Congress is going to do anything about anything. They are engaged in the most fraudulent cover-up the world has ever seen, and that doesn't seem to bother them. My question is, "What are the American people going to do? Wait until our country is history? Destroyed? The usurper is ridiculing and mocking us, and what do we do? We talk and talk and talk some more. It appears this has become a Nation of Weenies.
All the talking is to those of like mind and that is not going to accomplish anything.
The TALKING has got to be before a GRAND JURY who can render an indictment
that will put all these criminals before a jury of their peers.
GRAND JURY is the ONLY lawful means of restoring some justice to we the people.
All groups of like mind need to establish a poweful consensus in unity and bring
demands for the GRAND JURY to be convened to present the self-evident convicting documented evidence.
The fact that she said you should do it, holds little water with respect to her blocking 9 dockets from being heard at the Supreme court, regarding the Usurper, proving he was eligible to hold the office of President of the USA. She is the reason those cases were never heard. Hello?
It only takes four (4) SCOTUS Justices to decide to hear a case. So, one of the so-called "conservative" justices has to be the hold out .. So, which one is it? Thomas, Scalia, Alito or Roberts?
Elena Kagan as Solicitor General prevented the cases to reach the supreme court. They never had it in front of them.
Any idea why the Usurper would want Elena Kagan as a supreme court justice?
Does this surprise anyone ?…Isn't this just another example of the "gangster government" behavior that seems to permiate every aspect of this administration's policies…We have made a horible mistake and have little means of correcting it without the cooperation of the Congress and the Obama Justice Dept…Fat chance there…
Hey ! It's the Chicago Way…."Thugocracy"…Placing Key people in high places of control is necessary…They can't survive with the truth and the Rule of Law…Why do you think Rom Emanual
is the Mayor of Chicago..? Because the Obama minions are running his 2012 campaign from there…Far from the prying eyes of Washington…America…You have your work cut out for you in 012…
(*^#Q$#@Q$…!
Supreme Court Justice Elena Kagan should be removed from the Supreme Court if it is proven to be fact that she broke the law or lied under oath.
elena kagan should recuse herself from the supreme court. She doesn't belong there.
@"elena kagan should recuse herself from the supreme court. She doesn't belong there."
That's why they put her there. So she would do as they say. Same reason they put Obumer where he is.
Ern i agree with your post in it's entirety.
To impeach a Supreme Court Justice is a two step process.
1.The house of Representatives can Impeach with just a simple majority vote.
2.the Senate has a trial & a two thirds majority vote is required to convict &impeach.
How is it that this man and his band of thugs have conned this entire Country and thus far have gotten away with it….Why?? well maybe it's because in politics nothing is accidental, If something happens be assured it was planned that way…as quoted by FDR ….AND….a GOVERNMENT big enough to give you everything you want, is big enough to take away everything you have….Thomas Jefferson…Do you see
any correlation here?….The only thing that is transparent here, is that he is a fraud,…and he is being protected, by the elites. They run the world, and everyone in politics pretty much knows that. why else hasn't he been stopped? This is all a game and we are the pawns, because behind the scenes, both parties are all buddies. Their only interest is protecting their assets, their perks, their pensions, their healthcare. Our Constitution and all that it stands for, means nothing to him, as it meant nothing to Bush.,,,..it's been two years now, and the poop keeps getting deeper and deeper….
They never conned me. I knew when Oboma faiedl to put his right hand over his heart during the reciting of the pledge of Allegiance this guy is upside down.
He has not proven other wize yet.
To add insult to injury McCain said "I will not be running an Attack campaign". "Oboma is a good man, a fine man, he will make a good president. We have nothing to fear from an Oboma presidency".
Any other candidate would have dissected this impostor. McCain is a turn coat. who with Huckabee aced out Romney So McCain could give the presidency away. He was against anyone attacking Oboma but his VP sarah Palin was fair game. McLame is an earned title and he is the Hero of Zero. While Rush Limbaugh, The all knowing, all seeing, Maha Rushi decided not to say a word. After all Liberals provide him with much more to talk about, Than do honest long suffering men Like Duncan hunter who was effective in border control in San Diego.
It's unimaginable that the Solicitor General wouldn't somehow be involved in litigating something as large and controversial as the government takeover of healthcare in the U.S. Kagan and Obama can't seriously believe that Americans will accept her word that she recused herself from assisting the federal government's side on this issue. Now there seems to be clear proof that Kagan had a role in the defense of Obamacare. It will be interesting to see how the GOP Senators that confirmed her will react. Indeed, the reaction of all Republican Congressmen to such news will show Americans if what we learned about U.S. government from our Civics classes is still true or if we have once again been treated to another painful lesson in how politicians lie to maintain power, even if it means sharing that power with their supposedly ideological opposites while once again ignoring their constituents. Personally, I think it's the latter. The GOP leadership in Congress better get cracking if they wish to maintain the voters' goodwill from 2010; that election is already becoming a distant memory for many jaded Americans…
This data will be buried some where along the road as the white house will cover it up if they can. One thing for sure is that Obama will get his way by putting her in the hight court. Anything against him will be vetod by her.
Kagan needs to recuse herself from the healthcare hearings at the Supreme Court, but I doubt very much she will. If she doesn't she needs to be impeached, period!