Paper argues for Kagan's recusal in health care challenge

Jessica M. Karmasek Nov. 10, 2011, 10:39am


WASHINGTON (Legal Newsline) - An expert on judicial issues says U.S. Supreme Court Justice Elena Kagan should recuse herself from the multistate challenge to President Barack Obama's health care reform.

In a "white paper" released Wednesday, Carrie Severino of the Judicial Crisis Network argues that Kagan, as solicitor general, was directly involved in the defense of the new federal health care law and that she should therefore dismiss herself from any consideration of its legality before the nation's high court.

Severino is chief counsel and policy director for the Judicial Crisis Network, a Washington-based group committed to upholding the Constitution and limited government. She regularly speaks and writes on judicial issues, particularly the federal nomination process and state judicial selection.

"As President Obama's top advocate, Kagan headed the office responsible for formulating the administration's defense of PPACA -- and oversaw the arguments both on appeal and in the lower courts because of PPACA's national importance," she wrote in the 10-page paper.

"The president is now asking her to adopt the very same positions her office helped craft for him on this matter, but this time, as a Supreme Court Justice."

Fourteen states, later joined by 12 others, filed a challenge to the law in March 2010. The 26 states contend that its individual mandate requiring that all Americans purchase health insurance or face a $695 penalty every year is unconstitutional.

The states filed a petition in September to have their challenge heard immediately by the U.S. Supreme Court.

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

Severino argues that Kagan's move from advocate to Supreme Court justice on the same issue raises "profound" questions about her continued involvement in the case.

The legitimacy of any decision in which she is in the majority would be "instantly suspect" if she decides not to recuse herself, Severino says.

"To use a sports analogy, would anyone trust the outcome of a close game where the referee had been a coach for one of the teams earlier in the game?" Severino wrote.

The Judicial Crisis Network isn't the only public interest group concerned over Kagan's involvement in the case.

In May, Judicial Watch, which says it investigates and prosecutes government corruption, 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 designate someone.'"

After Kagan was nominated to the Supreme Court, Judicial Watch says Katyal's tone changed.

In fact, 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 email chain titled "Health care litigation meeting" that referenced an "internal government meeting regarding the expected litigation."

Severino, in her paper for the Judicial Crisis Network, referenced much of the same documents.

"Justice Kagan has stated under oath that she was never asked, nor did she ever offer, her opinion concerning the merits of U.S. Department of Health and Human Services v. State of Florida, et al., (the 'HHS' case)," she wrote. "However, there is evidence suggesting that she participated as counsel concerning the proceeding and therefore is bound by federal law to recuse herself from the case."

And while Kagan's name does not appear on any filings in the multistate lawsuit, that level of involvement is not required to necessitate recusal, Severino argues.

"The statute nowhere defines either 'counsel' or 'participated,' but case law does give guidance, and that guidance indicates that any personal (as opposed to pro forma) participation in a case is sufficient to trigger recusal," she wrote.

"Thus, while the titular head of a large office might not be barred from hearing a case if there was no previous personal involvement, judges must recuse themselves if they have 'previously taken a part, albeit small, in the investigation, preparation or prosecution of a case.'"

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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