In a letter written to Congressman Lamar Smith (R-TX), Chair of the House Committee on the Judiciary, 49 members of the U.S. House of Representatives have requested the House Judiciary Committee investigate recently appointed Supreme Court Justice Elena Kagan for the role she may have played in preparing legal defense of the pro-abortion Patient Protection and Affordable Care Act while she was Solicitor General. Chairman Smith sent a letter to Attorney General Eric Holder informing him of the request to investigate Justice Kagan.
Documents have recently been released under the Freedom of Information Act (FOIA) which some House members label as contradictory to the testimony Kagan gave prior to her confirmation to the Supreme Court. Lawmakers have questioned Kagan’s ability to remain objective if any case involving PPACA comes to the Court. “Contradictory to her 2010 confirmation testimony before the Senate Judiciary Committee, recently released Department of Justice (DOJ) documents indicate that Justice Kagan actively participated with her Obama Administration colleagues in formulating a defense of PPACA,” the letter said.
The letter refers to documents that were released when CNSnews.com filed a lawsuit under FOIA. Initially, the Department of Justice refused the request for the documents in question, but CNS’s parent organization, the Media Research Center, filed a federal suit which ultimately obliged the department to comply with FOIA. Many of the documents released were emails sent between then Solicitor General Kagan and her staff. They indicate that Justice Kagan’s input was sought to prepare for an inevitable challenge to PPACA. The Office of Solicitor General is to oversee and conduct all litigation brought to the Supreme Court. As Solicitor General, Kagan would have known the briefs were being prepared, and would have had knowledge of their content.
When CNS first requested the information, the Justice Department claimed it was exempt from such a request, yet later released modest information. The information that was eventually released was signed by Valerie Hall, Kagan’s executive officer in the Office of Solicitor General. The Justice Department is now successfully blocking any more requests made by CNS and the Media Research Center for the remaining information.
Chairman Smith’s memo to Attorney General Holder calls for the immediate release of all documents that pertain to Kagan’s alleged involvement with preparing a defense:
In recent weeks, question have been raised about whether Justice Kagan’s prior work on what became the Patient Protection and Affordable Care Act (PPACA) while serving as Solicitor General should disqualify her from hearing challenges to its constitutionality. All parties agree the critical question is the extent of her involvement, as Solicitor General, in formulating the Administration’s legal position on PPACA, which was signed into law by President Obama on March 23, 2010.
Chairman Smith requested that all documents pertaining to the issue be released to “properly understand any involvement by Justice Kagan in matters relating to health care legislation or litigation while she was Solicitor General.” Smith also requested interviews with Kagan’s lead staff while she was Solicitor General.
Prior to recent events, Chairman Smith issued a statement after Kagan’s appointment in 2010:
Though Kagan has no prior judicial record for the Senate to review, her role as an Obama-insider and senior official in the Administration indicates that she shares the same liberal judicial philosophy as the President and his top advisors. With no judicial experience to evaluate, the Senate must conduct a thorough investigation into all areas of her record to determine her commitment to the Constitution.
John Fleming (R-La), the lead signer of the letter to Chairman Smith, stated that “Determining the extent of Justice Kagan’s involvement is imperative for Americans to have confidence in the impartiality of the Supreme Court.”
Five of the 49 House members who signed the letter to the House Committee on the Judiciary are from Texas: Louie Gohmert, Ted Poe, Sam Johnson, Ron Paul, and Bill Flores. Every one of the 49 signers called for Justice Kagan to recuse herself from any and all proceedings regarding PPACA. Kagan’s alleged involvement in the litigation could prove essential if lawsuits regarding the pro-abortion, pro-health rationing law ever reach the Supreme Court. Neither Justice Kagan nor the Office of Solicitor General has released a statement on the matter.
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