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 not to “proceed with a proposed regulation” related to the issues in the Golden Gate case “because of the passage” of the PPACA. This means that there had to have been detailed discussions between the OSG’s Office and the Labor Department over the legislation and its effect on this case. That is confirmed by an email dated March 22, 2010, from Edwin Kneedler, the Deputy SG, to Kagan in which he states that the Labor Department had been requested to produce an insert for the brief “identifying the provisions of the health care bill (as it will be reconciled) that are relevant to the preemption issue in this case.”
The amicus brief summarizes for the Supreme Court the “numerous provisions” of the new legislation. The OSG argues that the court should not take the Golden Gate appeal because:
…the intervening enactment of comprehensive federal health care legislation has dramatically changed the landscape governing payment for health care, substantially reducing the importance of the question whether ERISA preempts state or local requirements and also giving rise to additional legal issues that have not been addressed by the federal Departments responsible for implementing the new legislation or by the courts.
According to the OSG’s brief, the “Court’s review of the ERISA preemption issue is not warranted at this time.”
Elena Kagan’s name is not on the amicus brief; it is signed by Neal Katyal as the Acting SG. However, Katyal wrote a “Memorandum for the Solicitor General” dated May 13, 2010, on the subject of “CURRENT CASES THAT YOU HAVE WORKED ON.” This memo was sent to Kagan “to guide your decisions about which cases to participate in pending your nomination.” It contains a list of cases “in which we feel that you have substantially participated” (emphasis added). The second case listed is “Golden Gate.” Internal emails reveal that the case was “discussed with Elena several times” and that she exchanged multiple private emails with the counsel drafting the brief.
28 U.S.C. §455 (a) requires a justice to disqualify herself from any proceeding “in which [her] impartiality might reasonably be questioned.” Section (b)(3) mandates that a justice disqualify herself from a case in which she “has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.”
The fact that Kagan “substantially participated” in a case in which her office filed an amicus brief that discussed the PPACA in detail and provided an opinion on its effect on the issues in that case raises new and serious questions about her impartiality—particularly when viewed together with the evidence of her internal communication regarding the legal challenges to Obamacare. The OSG itself said in an email on May 11, 2010, from Kneedler to Katyal that the “Golden Gate case presents special considerations because of the possible nexus to the Health Care bill.” So even internally, the Justice Department recognized the “nexus” between the Golden Gate case and the PPACA.
Regardless of whether Kagan actually signed the amicus brief in the Golden Gate case, her undisputedly substantial participation as counsel and adviser in formulating the government’s legal opinion on the effect of the PPACA on the issues involved in that case demonstrates that she possessed and received privileged information concerning the Justice Department’s internal legal opinions on Obamacare. The terms of the federal statute are designed to ensure that an individual with access to privileged information involved in formulating legal strategy and policy regarding an issue such as the constitutionality of Obamacare does not sit on the bench to review that strategy.
This new evidence must be considered in determining whether it is appropriate for Kagan to sit as a justice to hear the challenge to Obamacare. Otherwise, there could be very negative implications to the public’s perception of the objectivity of the court in general, Kagan in particular, and the legitimacy of the final decision issued by the Supreme Court.
Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation, a former FEC Commissioner, and the former Counsel to the Assistant Attorney General for Civil Rights at the Justice Department.