Special Report

ObamaCare and Kagan’s Conflict of Interest

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

By 7.7.11

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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.

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About the Author

David Catron is a health care consultant. He has an MBA from the University of Georgia and blogs at Health Care BS.