CFIF Joins Coalition Urging Hearing to Fully Expose Justice Elena Kagan’s Role in Admin’s Legal Defense of ObamaCare |
Thursday, November 17 2011 |
In a letter to House Judiciary Committee Chairman Lamar Smith, the Center for Individual Freedom (CFIF) this week joined with more than 85 other organizations and grassroots leaders to urge the Committee “to immediately hold hearings to investigate the extent to which U.S. Supreme Court Justice Elena Kagan was involved in formulating the legal defense of the PPACA [ObamaCare] during her former service as Solicitor General.” Justice Kagan’s ability to be impartial in deciding the constitutional fate of ObamaCare has been a significant question of concern since her nomination to the U.S. Supreme Court. Indeed, as the letter below notes, “on June 24, 2011, forty-nine (49) Members of the House of Representatives called upon the House Judiciary Committee to investigate the … issue.” And with this week’s announcement by the Supreme Court that it will hear the various challenges to ObamaCare, the full extent to which Kagan was involved in crafting the administration’s legal defense of ObamaCare and whether she must recuse herself must fully come to light. The letter, which was organized by the Judicial Action Group, can be read in its entirety below. November 17, 2011 The Honorable Lamar S. Smith Re: Hearings to Determine the Facts Surrounding Then-Solicitor General Elena Kagan’s Role in the Defense of the PPACA. Dear Chairman Smith: Thank you for your diligent work to determine the facts surrounding then-Solicitor General Elena Kagan’s role in the Obama Administration’s legal defense of challenges to the Patient Protection and Affordable Care Act (“PPACA”). For the reasons stated below, we respectfully call upon the House Judiciary Committee to immediately hold hearings to investigate the extent to which U.S. Supreme Court Justice Elena Kagan was involved in formulating the legal defense of the PPACA during her former service as Solicitor General. As you are aware, on June 24, 2011, forty-nine (49) Members of the House of Representatives called upon the House Judiciary Committee to investigate the above issue. In support of their letter, on July 6, 2011, you wrote to Attorney General Holder asking him to release certain relevant documents, and to make Neal Katyal and Tracy Schmaler available for interviews. You asked General Holder to respond by July 29, 2011. General Holder not only failed to respond by July 29, but waited nearly four months to respond. On October 27, 2011, through an Assistant Attorney General, Ronald Weich, General Holder refused to comply with your request and, instead, characterized your reasonable request as “unseemly.” On October 28, 2011, you again asked General Holder to produce the documents and to make the two individuals available by November 4, 2011. As of the writing of this letter, General Holder has again failed to respond. As you are also well aware, documents finally released through Freedom of Information Act (“FOIA”) requests indicate that Justice Kagan actively participated with her Obama Administration colleagues in formulating a defense of the PPACA. Justice Kagan admitted during her Supreme Court Confirmation hearings before the U.S. Senate Judiciary Committee that she was present for “at least one” meeting in which the PPACA litigation was discussed. Moreover, then-Solicitor General Kagan made the unusual, but not unprecedented, decision for the Solicitor General’s office to coordinate with the Department of Justice (“DOJ”) while preparing the earliest defenses of PPACA rather than following standard practice of waiting until the act reached the appellate courts. Furthermore, Kagan personally appointed the over-sight of the PPACA defense to her top deputy – a political appointee – who zealously stated his desire to “crush” those challenging the constitutionality of PPACA. Kagan both received and responded to emails about the PPACA litigation which the Department of Justice now refuses to produce in whole in response to the aforementioned FOIA requests, claiming that such documents are “privileged” under an exemption traditionally reserved for those participating in their role as attorneys in a case. It is now apparent that Justice Kagan participated as an attorney in preparing the defense of the PPACA. As such, the law mandates two separate reasons why she must recuse herself from ruling on any cases involving the PPACA. First, 28 U.S.C. § 455(b)(3) mandates that a judge or justice recuse themselves if the justice has “served in governmental employment and in such capacity participated as counsel, advisor or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” The evidence indicates that, at a minimum, Justice Kagan participated in the defense of PPACA as counsel. Second, 28 U.S.C. § 455(a) mandates that a judge or justice recuse herself if her “impartiality might reasonably be questioned.” For all the reasons discussed above, a reasonable person would certainly have sufficient basis to question the impartiality of Justice Kagan if she were permitted to prepare the defense of a case as an advocate and then switch roles and judge the defense of that same case as a justice. Conclusion Justice Kagan has not indicated whether she will recuse herself from litigation involving the PPACA. Attorney General Holder has failed to comply with your repeated requests and has characterized your reasonable requests to determine the facts in this matter as “unseemly.” We disagree, and believe that it would be “unseemly” for the system of “checks and balances” to fail to operate in this landmark matter. Accordingly, we respectfully request that you immediately hold hearings to investigate the full extent to which Justice Elena Kagan was involved in preparing the legal defense of the PPACA during her former service as Solicitor General. Respectfully, Phillip Jauregui, President, Judicial Action Group*
cc: The Honorable John Boehner, Speaker, U.S. House of Representatives |
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