Federal law (28 USC 445) requires judges to recuse themselves when they have served as counsel or a witness to the case and when his or her impartiality might be questioned. The law also says justices must recuse themselves if they have “expressed an opinion concerning the merits of the particular case in controversy” while serving in government employment. But a justice can use his or her own discretion on recusal.
E-mails between Elena Kagan and members of the Obama Administration reveal that she was more involved with Obamacare law than was previously disclosed. E-mails show that Kagan was involved with forming the legal defense of the Patient Protection and Affordable Care Act (better known as ObamaCare) in her role as solicitor general. In a March 21, 2010 e-mail exchange with Harvard Law professor Laurence Tribe, Kagan, who at that time was US Solicitor General, expressed enthusiasm, so much so that it apparently required two exclamation points, at the news of the law’s impending passage through Congress. “I hear they have the votes, Larry!! Simply amazing,” Kagan wrote to Tribe in one of the e-mails.
Now (December 9, 2011) we are finding that Justice Department (DOJ) e-mails made just days before the House passed ObamaCare show that then-Solicitor General Elena Kagan was brought into the loop as DOJ began preparing to respond to an anticipated legal complaint that Mark Levin and the Landmark Legal Foundation were planning to file against the act if the House used a procedural rule to “deem” the bill passed even if members never directly voted on it. In the days before the March 21, 2010 House vote on the health-care bill, one underlying constitutional issue that became part of the national debate was whether the House could approve the Senate version of the bill without ever directly voting on it (“deem”) by using a procedural rule crafted by then-House Rules Chairman Louise Slaughter (D-NY). That is the procedure Mark Levin was preparing to challenge if used. Use of the so-called Slaughter rule would violate Article 1, Section 7, Clause 2 of the US Constitution which requires both houses of Congress to vote on a bill before it can be presented to the president for his signature.
Further, AG Eric Holder told Congress on Thursday, December 8, 2011, said that he has constitutional separation of powers concerns about providing Republicans documents detailing Supreme Court Justice Elena Kagan’s role in defending the health law when she was in the administration. He said requests for information about any potential conflict would be “best brought” by the parties to the upcoming Supreme Court case on the health law. DOJ has released e-mails indicating Kagan was “walled off” from the discussions once she was aware of the potential nomination. But House Judiciary Chairman Lamar Smith (R-TX) said that there is a “gap” between the time when the legal defense may have been under way and her nomination. He cited the e-mails, indicating Kagan told others in the office on January 8, 2010, that she “definitely would like the Office of the Solicitor General to be involved” in the legal defense. “Ms. Kagan found out she was being considered for a potential Supreme Court vacancy on March 5, 2010,” said Smith. “So the issue is how involved was she in health care discussions between January 8  and March 5 .”
DOJ offered nothing, no explanation of Kagan’s March 21, 2010, e-mail to Larry Tribe that was sent after she learned of her Supreme Court consideration. What other Elena Kagan e-mails await us?