Firestorm to Come: Elena Kagan and Obamacare

Despite to best efforts of the Obama Regime to cover it up, it is becoming clear that Supreme Court Justice Elena Kagan, back when she was Obama’s Solicitor General, was involved in efforts to defend Obamacare from legal challenges. And that more so than she had disclosed previously.

Now, if she were to follow any semblance of legal ethics, she would recuse herself from the Obamacare case sure to come to the Supreme Court. . . .

I apologize if any readers just now spewed coffee on the computers.

Of course, she is a Leftist. She will not let the Constitution get in the way of her agenda. She will certainly not let a triviality like legal ethics get in the way, either.

Which means the matter of Obamacare coming before the Supreme Court will get especially *interesting*. What if the case is decided by a single vote . . . Kagan’s? What if further forced disclosures confirm she was knee-deep in preparing the legal defense of Obamacare? (And, God forbid, what if said disclosures occur after she votes on Obamacare?) What if the Justice Department persists in withholding relevant documents? What if she helped cover up her involvement in defending Obamacare? Excerpts from released e-mails suggests she may have:

On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

In another email exchange that took place on January 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.”

However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal position changed significantly as he began to suggest that Kagan had been “walled off” from Obamacare discussions.

For example, the documents included the following May 17, 2010, exchange between Kagan, Katyal and Tracy Schmaler, a DOJ spokesperson:

Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: “Has Elena been involved in any of that to the extent SG ]Solicitor General’s] office was consulted?...

Katyal to Schmaler: “No she 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.”

Katyal (forwarded to Kagan): “This is what I told Tracy about Health Care.”

Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”


Should that be translated as “we need to coordinate to keep our cover-up story straight”?

I hesitate to jump to conclusions. But what has been revealed so far combined with what the Justice Department is still covering up invites such conclusions.

Let’s recap. Obama appointed his own Solicitor General to the Supreme Court to be his rubber stamp. At the time, there was concern that she would (or would not) recuse herself from cases she in which she had been involved as Solicitor General. In the confirmation process, she pledged that she would so recuse herself:

In the questionnaire she filled out for the Senate Judiciary Committee during her confirmation process, Kagan said she would abide by the “letter and spirit” of 28 U.S.C. 455 in deciding whether she felt compelled to recuse herself as a Supreme Court Justice from any case that came before the High Court.

According to the law, a ‘justice … shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.’ It further says any justice ‘shall also disqualify himself … [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.’


Now it is coming out she very likely was involved in preparing the legal defense of Obamacare. Further documents that might clarify that matter and whether it would merit recusal continue to be withheld by Obama’s Justice Department. And, of course, there is a snowball’s chance that she will recuse herself from any Obamacare decision, in which she very well may be the deciding vote.

I see a firestorm coming.

It is not out of the realm of possibility that, in due time, she will be impeached over this.