The American Spectator : ObamaCare and Kagan's Conflict of Interest

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ObamaCare and Kagan's Conflict of Interest

By David Catron on 7.7.11 @ 6:08AM

Will Justice Kagan do the honorable thing when the PPACA cases reach SCOTUS?

Many of the issues raised in the constitutional challenges to the Patient Protection and Affordable Care Act (PPACA) seem hopelessly arcane and confusing, and not merely to those of us who lack law degrees. Among legal scholars, there are as many opinions about these lawsuits as there are scholars themselves. For every constitutional expert who claims that PPACA’s individual mandate goes far beyond the authority legitimately wielded by the federal government there is another who insists that it falls well within its enumerated powers. There is, however, at least one point on which there is unanimous agreement -- ObamaCare’s ultimate fate will be decided by the U.S. Supreme Court. And it is increasingly obvious that one of the Court’s justices is burdened with a conflict of interest where that unpopular law is concerned.

From the moment President Obama announced her nomination, Elena Kagan has faced serious questions about her role in preparing the legal defense of PPACA. And, contrary to the claims of the White House and its allies in the news media, these queries cannot be written off as politically-motivated smear tactics generated by the "Republican noise machine." It’s hardly unreasonable to assume that, in her former role as Solicitor General, she would have played some part in preparing for the onslaught of lawsuits that ObamaCare was bound to provoke. Nonetheless, both Kagan and the Department of Justice (DOJ) insist that she did not, a claim undermined by their dilatory responses to document requests from Congress and numerous Freedom of Information Act (FOIA) requests.

From the beginning, the DOJ has claimed that "During her tenure, former Solicitor General Elena Kagan did not play any substantive role in litigation challenging health care reform legislation, and the documents that were released reflect that." In reality, however, the released documents reflect precisely the reverse. A series of 2010 emails obtained pursuant to the numerous FOIA requests clearly show that the acting Solicitor General who recently defended ObamaCare in the Eleventh Circuit Court of Appeals was assigned to the PPACA litigation team by Kagan herself. In anticipation of "the inevitable challenges to the health care proposals that are pending," then-Deputy Solicitor General Neal Katyal asked Kagan for permission to begin defense preparations and she explicitly granted it.

Shortly after receiving the go-ahead from Kagan, Katyal sent an email to one of his DOJ colleagues which reads as follows: "Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues. I will handle this myself …we will bring in Elena as needed." That he was foolish enough to put such information in an email may or may not explain Katyal’s recent resignation from the DOJ, but it has certainly fueled the growing interest on Capitol Hill concerning Justice Kagan’s ability to render an objective opinion on any ObamaCare case. Last week, in fact, a group of Republicans sent a letter to the House Judiciary Committee requesting an investigation into Kagan’s involvement in the administration’s preparations for anti-ObamaCare litigation.

The GOP letter, whose forty-nine signatures include those of presidential candidates Michele Bachmann and Ron Paul, cites the section of the United States code (Section 455 of Title 28) that applies to Justice Kagan’s situation and spells out the judicial conduct required by that statute: "According to the law, a justice should recuse themselves 'in cases where he served in government employment and in such capacity participated as counsel, advisor or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.'" The letter goes on to suggest that Kagan was less than forthcoming about the ObamaCare issue during her confirmation hearings.

During those hearings, Senator Tom Coburn asked her, "Was there at any time -- and I'm not asking what you expressed or anything else -- was there at any time you were asked in your present position to express an opinion on the merits of the health-care bill?" Kagan replied in the negative, but the letter’s signatories are clearly skeptical: "Contrary to her 2010 confirmation testimony before the Senate Judiciary Committee, recently released Department of Justice documents indicate that Justice Kagan actively participated with her Obama administration colleagues in formulating a defense of PPACA." Nonetheless, although she has recused herself in several other cases since joining the Court, Kagan has given no sign that she intends to do so in cases involving ObamaCare.

And there can be little doubt about which way she would rule in a case involving the power of Congress as expressed through the Commerce Clause, which is the crux of virtually every constitutional challenge to PPACA. During her confirmation hearings, she stated that this oft-abused clause has been legitimately "applied to anything that would substantially affect interstate commerce." This is precisely the argument that her former underling, Neal Katyal, made to the Eleventh Circuit last month. In other words, even if she did not participate in preparing the defense of ObamaCare, she has publically indicated that she concurs with the congressional Democrats who wrote the individual mandate into the “reform” law based on the notion that the failure to buy insurance is an act of interstate commerce.

Self-recusal is the only honest course of action open to Justice Kagan if any of the constitutional challenges to ObamaCare reach the Supreme Court. As Solicitor General she was clearly involved in orchestrating the administration's legal strategy for warding off such lawsuits and, as a Supreme Court nominee, she expressed sympathy with the views of the defendant. It’s not even a close call for anyone with respect for the Court and concern for public confidence in our legal system. But this is the Obama administration we're talking about here. So, when PPACA finally winds up before the Supreme Court, it is probable that Kagan will be sitting there with the honest justices and pretending that her obvious conflict of interest is just a product of the conservative imagination.

About the Author

David Catron is a health care revenue cycle expert who has spent more than twenty years working for and consulting with hospitals and medical practices. He has an MBA from the University of Georgia and blogs at Health Care BS.

Letter to the Editor View all comments (60) | Leave a comment

oldfart| 7.7.11 @ 6:41AM

Tsk, tsk, tsk. Never let facts or legal proglems get in the way of the 'agenda'. Did it every occur to anyone that getting the 'honorable' Justice Kagan on The Court is a way to try to predetermine the outcome of the court challenge that everyone knew would come?

Darin| 7.7.11 @ 6:48AM

Because she had a hand in crafting the law, honor and integrity would require her to recuse herself from any rulings pertaining to it. Whether she does so remains to be seen. If she does, great. If not, a legitimate question would be to ask why not. Also, it would act as a precedent for conservative judges not to recuse themselves from cases in which they have a vested interest.

Bill Hussein O'Stalin| 7.7.11 @ 7:00AM

This is one of the more humorous articles ever at TAS.

A liberal who is an avowed statist do the honorable thing? I'm still laughing at the concept.

You should have written this for the Onion.

Mike D.| 7.7.11 @ 8:33AM

Amen! When the agenda is in question, NOTHING gets in the way least of all intergrity.
She has no intention of sitting this out, never had and never will. She was put there for a reason.

Wayne | 7.7.11 @ 12:53PM

This is why the Democrats have attacked Thomas, saying he should recuse himself because of his wife's actions.

But how about trying Kagan for the same offense as Roger Clemens?

Tom| 7.8.11 @ 2:26AM

They should so Roger Clements her but lying is acceptable if your a liberal

SpiralArchitect| 7.7.11 @ 1:39PM

You should have written this for the Onion

Stayin true to form, Bill.

Purpleguy| 7.7.11 @ 5:13PM

Well then you must really be rolling over the conflict of interest, alleged quid pro quo and influence peddling from the oh so honorable Justice Clarence Thomas and his Tea Party wife? People in glass houses ...

Oldefarte| 7.9.11 @ 10:58AM

Neither Justice Thomas nor his wife was active in the writing process of this law, idiot [but you have three guesses as to WHO was so]!!!!!!!!!

Sandy| 7.7.11 @ 7:45AM

Expecting a liberal to do the honorable thing is not going to happen. Kagan should be forced off any possible Supreme Court case involving Ocare.

One of the attorneys working on the VA Obamacare lawsuit warned- With the recent appellate success in one state, if the 2 remaining appellate decisions go in favor of Obamacare, it is possible that the Supreme Court would not take the case, as all or most of the appellate decisions approved of Ocare. We still have to work on getting good Republicans elected to both houses, and the presidency so that the law can be repealed.

CtoC| 7.7.11 @ 7:55AM

Show me a liberal who has done anything honorable in the past 3 to however many years, and this article might have been worth writing.

Purpleguy| 7.7.11 @ 5:31PM

Obama go Osama ... a man of his words...

skip| 7.8.11 @ 6:43PM

Yep. His first day he gave his word gitmo would be closed in a year. While you're crediting Obama, why don't you share where the information came from that led the Navy Seals to go after Osama after waiting on their heels 16 hours so Obama could sleep on it, unless the rumor is true that Panetta made the call after the 16 hour wait because Obama wouldn't give the 'okay'.

Ken (Old Texican)| 7.7.11 @ 8:23AM

What kind of odds can I get?
I'm betting she doesn't recuse herself.

Zexufang| 7.7.11 @ 8:39AM

Kagan recuse?
Ain't gonna happen.

Stormzeye| 7.7.11 @ 9:18AM

There's a federal statute (28 USC 47) that would actually BAR (not voluntary) a Supreme Court justice from rendering an opinion in this case given Kagan's prior involvement with Obamacare See:http://www.fjc.gov/public/pdf.nsf/lookup/Recusal.pdf/$file/Recusal.pdf

Conservative View| 7.7.11 @ 10:13AM

Unfortunatly that law is nothing more than a piece of paper. Who do you suppose can or would enforce it? Who would arrest a member of SCOTUS for breaking it? Not a soul. The deck, as they say, is stacked.

Let's face it. She was put on the court for a singular reason, to defend the Presidents plan. That's her job, and we must expect her to do it. We can gripe and complain all we want, we can call foul, we can wave the piece of paper in the air as we pronounce our igdinaton, and it wont do a bit of good.

People, I'm sorry to say this, but we've been had.

Purpleguy| 7.7.11 @ 5:45PM

Interesting how you believe your competition is just as parochial as your own side ...

Oldefarte| 7.9.11 @ 11:01AM

'Parochial' maybe, CORRUPT never!!!!!!

Stan Redmond| 7.7.11 @ 9:21AM

How can she have a conflict of interest? Her interestes do not conflict with his most holy King Obama [pbuh].

Dan| 7.7.11 @ 9:36AM

If she doesn't recuse herself it might give a legitimacy to future impeachment proceedings. It will be too little to late but something to consider.

Cpm| 7.7.11 @ 9:45AM

I thought the accompanying photo was Sylvester Stallone in drag.

Teaghan| 7.7.11 @ 10:29AM

Is the woman a beast or what!

Bill Diebold| 7.7.11 @ 11:00AM

..a real Old Spice poster gurl...

SeniorD| 7.7.11 @ 9:58AM

In re: "Commerce Clause" - the camel has gone through the eye of a needle and this country now exists trying to figure out "how many laws can be based on this common sense wording morphed into a legal justification for extra-Constitutional power?"

Dave| 7.7.11 @ 10:00AM

This one's too easy, but I'll give it a shot. Between her day job of playing a U.S. Supreme Court Justice in charge of supporting, defending and maintaining the American Constitution, her night gig of playing Miss Piggy on the Muppets shouldn't get in the way of ruling on (i.e. shoving along) this piece of Marxist legislation. And besides, as several posters have previously pointed out, why do you think this president put her ample b-side on that bench in the first place? Certainly wasn't to decorate room.

Sorry, kids. "Butch" Kagan will recuse herself when she, "Slick" Hillary and PBS hired gun Mark Shields lose one of their 9 collective chins.

Granted, this wild west analysis falls under the street definition of petty cheap shots ... so sue me. I'd look to "Fast Johnny" Boehner for some help, but he's too busy playing golf with "Bad" Barry while dabbing his weepy eyes. "Big Mitch" McConnell? Not gonna happen. Word has it that he's been tied up recently trying to lose one of his OWN 3 chins.

I'd try to leave some positive words here, but the only ones that come to mind are the one's Marshal Dillon muttered when he informed his trapped deputy: "Well, Chester, looks like the posse ain't comin.'

The End?

David W| 7.7.11 @ 10:14AM

if it can be proved that Kagan lied during confirmation hearings would that not be considered grounds for impeachment? Can a Justict be impeached for lying under oath (assuming she was under oath)?

AgentRose| 7.7.11 @ 10:42AM

Everyone knows that she has a conflict of interest but she's a Democrat and will get away with it since the Republicans have no cojones!!

AgentRose| 7.7.11 @ 10:43AM

Look--after Obamacare gets a pass can Obama demand that everyone buy a Chevy Volt for $50,000 and shut down transportation in this country after he shuts down medicine?

Should Have Impeached| 7.7.11 @ 9:08PM

If he can get Congress to vote it in, apparentlyyyyy... and if it can be justified by the Commerce Clause, it'll stick. No backin' out of anything at that point.

jeff taylor| 7.7.11 @ 11:29AM

She was not involved with this legislation while Solicitor General because she was sequestered by the man that would nominate her to the Supreme Court. Why risk a guaranteed vote in your favor?

Tom in Michigan| 7.7.11 @ 11:30AM

As sure as the sun rising in the east; Kagan will most assuredly NOT recuse herself in the Obamacare case as it is her entire raison d'etre.

She will instead, point out her recusal in other, less important (to the Obamaviks, that is) cases as indicative of her judicial integrity. She will also uphold the constitutionality of Obamacare, regardless of the quality of the opposition's case.

Everybody knows this. Anybody who thinks otherwise is not paying attention.

JP| 7.7.11 @ 12:00PM

In the end, it is up to the Judge herself to recuse herself. And we know the chances of that happening. ObamaCare, is after all, the President's landmark bill. There is no way she is going to "sabotage" ObamaCare.

Ken (Old Texican)| 7.7.11 @ 12:14PM

C'mon guys,
what kind of odds are you giving me?

I would enjoy the cash. I've got a hundred dollars at pay pal for each of you who is willing to give me acceptable odds.

McCandles| 7.7.11 @ 12:16PM

She's a Jewish lawyer from NYC. Daughter of a Jewish lawyer from NYC. Did everything she could to ban our military recruiters from Harvard. She abhors the military, and everything that once made this nation great. What do you all expect she will do??

George S| 7.7.11 @ 12:26PM

Kagan is not the problem, not when you consider how many lower court judges think the mandate provision is within the constitutional powers of the Congress. The problem is that law schools are churning out more Kagans every year. Even if Kagan does recuse herself, Scalia and Thomas will not be around forever. And there are fewer and fewer originalists being created. As they say, do the math.

Anthony| 7.7.11 @ 12:28PM

In the new Obozo Alice -in-Wonderland America, which trumps all truths and the Constitution, those with clear conflicts have no duty to recuse themselves because they simply are entitled to any presumption they desire. It's all for the CAUSE!!!
However, those with no conflict at all, i.e, Justice Thomas, must recuse, because he simply stands in the way of the leftist march to socialism.
Once this paradigm is understood, it all becomes clear.
The only way to leave this Alice-in-Wonderland America, is to kick their collective leftist asses out of office.

MBD| 7.7.11 @ 1:00PM

It is not likely that her vote will be decisive on the issue of Obamacare. It is most likely that the decisive vote will be that of Justice Kennedy. If he votes to hold the legislation unconstitutional (and is joined by the four conservatives), whether she votes or not will make no difference since the vote will be 5-4 or 5-3 against the constitutionality of the act. If Kennedy, on the other hand, votes to hold it constitutional, the act will be upheld on a 5-4 vote if Kagan votes. If Kennedy joins the liberal block without Kagan, the vote would likely be 4-4(assuming the four conservatives vote against its constitutionality and the other three liberals vote to uphold the act). This 4-4 split will result in an affirmance of the ruling of the Circuit Courts' decisions. Already, one of the Circuits has upheld the act. If the remaining two also uphold the act (by reversing the District Courts' rulings), a 4-4 ruling (without Kagan, but with Kennedy voting with the liberals) by the Supreme Court will uphold the act. There is a potentially interesting situation if the Circuits are split and the Supreme Court reviews all three under consolidation and the result is a 4-4 split, but the likelihood of this may not be very great.

Gary| 7.7.11 @ 1:02PM

"So, when PPACA finally winds up before the Supreme Court, it is probable that Kagan will be sitting there with the honest justices and pretending that her obvious conflict of interest is just a product of the conservative imagination."

You can count on it.

dnha14| 7.7.11 @ 1:27PM

Let's see now if I understand this correctly. The president's top legislative priority and the president's top attorney and they never discussed how they would get this through the courts, while all the while they knew that's where it was going to end up. Wow, seems realistic to me! But, what do I know, I'm just a stupid conservative.

Dave Williams| 7.7.11 @ 1:28PM

A liberal do something of honor???? Especially when the increase of state power hangs in the balance???? Hooo-hah-hah-hah-hah!!!!! *wipes tears from eyes* Thanks for the laugh of the day (but the crying will assuredly come later).

Bob Grant| 7.7.11 @ 2:08PM

John Lovitz wearing pearls.

dadfly| 7.7.11 @ 4:39PM

gee, i'm about to make my first ever political prediction: no, she wont.

a statist will always take any means to an end.

Naturalborn Texican| 7.7.11 @ 5:05PM

I'm afraid I smell the toast burning.....and we ARE the toast!!!

truzak| 7.7.11 @ 6:38PM

So why cannot the Chief Justice - given the evidence and even the slightest appearance of a conflict of interest - force her to recuse herself?

Where is the respect for, and the rule of, law anymore with this bunch of Marxist phoneys? When the people see that the laws are being ignored, when they feel they have no recourse to legal protection unless they have contributed big bucks to Obama, frustration builds and people are forced to take the law into their own hands. One wonders if this is Obama's end game - to create anarchy in the streets so as to declare martial law, completely bypass the Congress and courts, and become what he already believes he is - an emperor.

POST American| 7.7.11 @ 10:55PM

---Great piece!

BTW ---speaking of health, we've just learned
yet another neighbor, clean living, family sort,
has expired from stomach cancer at the age of
45.

Seems he was a great fan of those, now ON RECORD, GMO granola cereals.

Once again, remember it was PM Harper who
secretly signed in saturation of the Canadian
commercial food chain with GMO over ten
years ago. Likewise certainly on this side of
the border.

He, and a few dozen others, should certainly
be facing death row.

Tainting and adulterating the mass food and water supply should unquestionably be a capital crime of the very, very highest order.

This is the healthcare politcy we need.

t shirts| 7.8.11 @ 4:08AM

If she does, great. If not, a legitimate question would be to ask why not.
http://www.ainibag.com

weddingdress| 7.8.11 @ 4:35AM

So why cannot the Chief Justice - given the evidence and even the slightest appearance of a conflict of interest - force her to recuse herself?

RCV| 7.8.11 @ 6:31PM

Beyond the scope of the CJ's powers to do so.

DANSHANTEAL| 7.8.11 @ 5:09PM

I'VE READ JUST ENUF TO BE DANGEROUS. THE DROPPINGS FROM THE DOJ AND HER OFFICE INDICATE SHE HAD AN ACTIVE ROLE. HOW ACTIVE? SHE SAID NOT A SUBSTANTIVE ROLE. REMAINS TO BE SEEN.
I WASN'T AWARE UNTIL TODAY THAT KATYAL LEFT THE DOJ; HIS TESTIMONY ALONE WILL PUT HER UNDER. THERE'S PLENTY OF TIME TO SORT THROUGH THE MESS AND WE HAVE JUSTICE KENNEDY TO FALL BACK ON.

RCV| 7.8.11 @ 6:30PM

She won't recuse herself, nor is she required to. Catron's long article contains not one shred of evidence to support his claims that Kagan was involved in the defense of the act. Instead, the emails establish that she assigned someone else in the Solicitor's office to head the task force. The calls for her to recuse herself are nothing more than a political attempt to stack the deck, just as are the calls of some lesftists for Justice Thomas to recuse himself.

Michael Bowler| 7.9.11 @ 7:07AM

As the author indicated, Kagan will sit for the hearings involving Obamacare, acting as though there is no problem. She is setting herself up for impeachment, such an act would be unprecedented none the less appropriate.

Of course, impeachment would have to wait for a serious republican majority in the senate, but it could be done.

In the past, our supreme court has been somewhat removed from political activism, only occasionally giving rulings that were outrageous and rarely having justices acting like partisan hacks. Even the nutjob liberals like Ginsberg observe some level of decorum. Kagan will be as blatantly partisan as any can imagine, making Sotomayor look conservative (yup, pretty ridiculous).

Oldefarte| 7.9.11 @ 11:05AM

This is precisely why I've opined many times as to the STUPIDITY demonstrated by this country's voters on 11/4/2008, when it allowed this president's election [and therefore his ability to appoint such justices to the SCOTUS etc]. The one/only solution to the prevention of further such damages is the elections of November of next year!!!!!!!!!!

Bob Grant| 7.9.11 @ 9:14PM

Indeed! We cannot afford liberal replacements to Kennedy or possibly Scalia in a second Obama term.

That disastrous result would be the anointing of a dictator with no check or balance.

The end of America!

nyp| 7.9.11 @ 2:10PM

So Elena Kagan's involvement in "formulating a defense" of health reform consisted of assigning work on the issue to someone else?

That doesn't sound like evidence that she was directly involved. Sounds more like the opposite.

Speedypete| 7.10.11 @ 3:26PM

I am still dumbfounded how a plurality of the Senate confirmed her over so many deserving judges with decades of case law to review. Maybe that is the reason I burst out laughing when I see U.S. Senators speak from the pulpit like they have something to offer us from on high. Hilarious that she is setting where she is and that she is going to rule on that biggest POS legislation ever concocted that she protected. We are insane!