Group says e-mails show justice's involvement in ObamaCare litigation

John O'Brien May 18, 2011, 12:58pm


WASHINGTON (Legal Newsline) - A public interest group says U.S. Supreme Court Justice Elena Kagan helped coordinate the defense of federal health care reform during her prior job as solicitor general.

Kagan has not yet recused herself from hearing the several lawsuits challenging the constitutionality of President Barack Obama's health care package that was signed into law in March 2010. She also apparently participated in a vote that declined to expedite Virginia Attorney General Ken Cuccinelli's challenge.

Judicial Watch, which says it investigates and prosecutes government corruption, on Wednesday released highlights from documents received through a Freedom of Information Act lawsuit. The group says a Jan. 8, 2010 e-mail from former Deputy Solicitor General Neil Katyal shows Kagan was involved in the strategy to defend the law.

Katyal wrote that Kagan would be brought in "as needed" for cultivating a defense. Katyal also urged Kagan to attend a health care litigation meeting in March 2010.

Judicial Watch says, "In another e-mail exchange that took place on Jan. 8, 2010, Katyal's Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to ObamaCare. 'Could you figure out the right person or people for that?' Hauck asked. 'Absolutely right on. Let's crush them,' Katyal responded. 'I'll speak with Elena and designated someone.'"

After Kagan was nominated to the Supreme Court, Judicial Watch says Katyal's tone changed. He told a Department of Justice spokesperson that Elena "has never been involved in any of it. I've run it for the office, and have never discussed the issues with her one bit."

Some of the records produced had portions withheld. Kagan was an author and recipient in an e-mail chain titled "Health care litigation meeting" that referenced an "internal government meeting regarding the expected litigation."

Several lawsuits challenge a mandate in the federal health care reform package that requires individuals who do not purchase health insurance to pay a $695 penalty every year.

U.S. District Judge Henry Hudson of Virginia granted Cuccinelli summary judgment. U.S. District Judge Roger Vinson of Florida also granted summary judgment to a coalition of 26 states and the National Federation of Independent Businesses in its lawsuit. The federal government appealed both decisions and it is widely understood that the U.S. Supreme Court will ultimately decide the issue.

Cuccinelli even wanted to skip the U.S. Court of Appeals for the Fourth Circuit because he wanted the issue resolved quicker and knew whatever decision the Fourth Circuit handed down would be appealed.

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