ARRA News Service
News for social, fiscal & national security conservatives who believe in God, family & the USA. Upholding the rights granted by God & guaranteed by the U.S. Constitution, traditional family values, "republican" principles / ideals, transparent & limited "smaller" government, free markets, lower taxes, due process of law, liberty & individual freedom. Content approval rests with the ARRA News Service Editor. Opinions are those of the authors. While varied positions are reported, beliefs & principles remain fixed. No revenue is generated for or by this site - no paid ads - no payments for articles. Fair Use doctrine is posted & used.
Editor/Founder: Bill Smith, Ph.D. [aka: OzarkGuru & 2010 AFP National Blogger of the Year]
Contact: editor@arranewsservice.com (Pub. Since July, 2006)
    Home Page
   

One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors. -- Plato (429-347 BC)

Friday, November 18, 2011

Senators Demand Details On Kagan’s Health Law ‘Role’

Letter to Attorney General Holder: ‘It appears that former Solicitor General Kagan’s participation in the Obama Administration’s defense of the PPACA may satisfy both requirements for recusal’

Key Senate Republicans sent a letter to Attorney General Eric Holder on Friday urging him to comply with Congressional oversight requests regarding former Solicitor General Elena Kagan’s role in the administration’s defense of the health care law. Their letter states: “when a former member of the Administration is in a position to rule on litigation in which she apparently had some involvement and which concerns legislation she herself supports, public confidence in the administration of justice is undermined. Your Department’s refusal to provide information to the Congress that could eliminate this apparent conflict of interest only undermines that confidence further.”

The letter is signed by Republican Leader Mitch McConnell, Republican Whip Jon Kyl, Senate Judiciary Committee Ranking Member Charles Grassley and Senator Mike Lee. Full text of the letter below:
November 18, 2011

The Honorable Eric Holder

Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001

Dear Mr. Attorney General:

Members of Congress have been trying to determine whether Justice Elena Kagan has a conflict of interest with respect to participating in litigation in the Supreme Court challenging the constitutionality of the Patient Protection and Affordable Care Act (PPACA) due to her involvement with and support for this legislation while a member of the Justice Department. Unfortunately, your Department has rejected all Congressional oversight requests for information about her role in the Obama Administration’s defense of this law. You recently told the Senate, incredibly, that you were not even aware of Congressional requests on this topic, and that your Department handled her duties as it relates to such matters in a way that is belied by the facts, namely that you physically removed her from all meetings discussing the litigation. Because of the highly questionable manner in which your Department is handling this important issue, we write to underscore the importance to the rule of law of an informed resolution of this question, and to apprise you of the legal and factual bases for our concerns.

Federal law requires recusal from a case if a judicial officer of the United States “has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.” 28 U.S.C. § 455(b)(3). In addition, a federal judge must disqualify herself from participating in a matter if her “impartiality might reasonably be questioned.”  Id. at § 455(a). It appears that former Solicitor General Kagan’s participation in the Obama Administration’s defense of the PPACA may satisfy both requirements for recusal.

Then-Solicitor General Kagan acknowledged to the Senate Judiciary Committee last year that, in fact, she played a “role” in the Obama Administration’s defense of the PPACA, including attending “at least one meeting” that discussed the litigation. But she minimized her degree of involvement in the litigation, characterizing it as not “substantial.” Federal law, however, requires recusal if a government official participated in a matter that is the subject of litigation; it does not require the government official’s past participation in that same matter to be “substantial” (as determined by the self-same government official).

Moreover, emails finally produced by your Department in response to lawsuits to enforce the Freedom of Information Act suggest involvement by then-Solicitor General Kagan in the Administration’s preparations for defending the PPACA. In January 2010—two months before then-General Kagan was even aware she was being considered as a potential nominee to the Supreme Court—your Department began planning to defend this law against legal challenges. Neil Katyal, Ms. Kagan’s principal deputy, stated he would “speak with Elena” about her office participating in a Department working group that would plan the Administration’s litigation strategy, exclaiming that he wanted the Administration to “crush” those challenging the PPACA. A few hours later, Mr. Katyal indicated that he had spoken with Ms. Kagan about the legal working group, and said she “definitely” wanted her office to participate in it. (“Elena would definitely like OSG [Office of the Solicitor General] to be involved in this set of issues.”)  He said the working group would “bring Elena in as needed.” A few days later another member of your Department made clear that the working group would discuss the legal “claims that will be asserted and how [the Obama Administration] will defend against them.” This email then listed the major legal issues that likely would arise in legal challenges to the PPACA over which the working group would deliberate. (Your Department has redacted that part of the email: “The big areas of possible litigation are [redacted].”) Mr. Katyal then underscored that Ms. Kagan’s office was to be “heavily involved” in planning the Administration’s legal strategy “even in the d[istrict court].”

In March—two months before then-Solicitor General Kagan was nominated to the Supreme Court—she was party to a discussion involving the head of the PPACA litigation defense working group (Associate Attorney General Thomas Perrelli) and Mr. Katyal. Specifically, Mr. Katyal added Ms. Kagan to an email discussion with Mr. Perrelli so Mr. Katyal could advise her of a draft litigation complaint challenging the PPACA. Mr. Katyal raised particular parts of the complaint with Ms. Kagan and Mr. Perrelli, including his analysis of the plaintiff’s litigation strategy. He also provided a link to a website so Ms. Kagan and Mr. Perrelli could review the document themselves. Mr. Katyal then recommended to them the next steps the Justice Department should take to respond to this upcoming legal challenge. He specifically noted that he was now including then-Solicitor General Kagan to apprise her of his recommendation, presumably so she could express any disagreement with it (“I haven’t discussed this with Elena, but am cc’ing her here”). It should be noted that according to then-General Kagan’s own testimony to the Senate Judiciary Committee, during the time of this discussion of a particular legal challenge to the PPACA, she was still performing her duties as Solicitor General as normal.

Just three days later, then-Solicitor General Kagan expressed her glee to another member of your Department, Legal Advisor and Law Professor Larry Tribe, about the PPACA’s likely passage in the Congress. In an email entitled, “fingers and toes crossed today!”, Ms. Kagan happily says to Professor Tribe, “I hear they have the votes, Larry!!  Simply amazing.” Professor Tribe then gives Ms. Kagan his view of a recent modification to the legislation.  (“So health care is basically done!  Remarkable. And with the Stupak group accepting the magic of what amounts to a signing statement on steroids!”)

President Obama chose to nominate a member of his Administration to the Supreme Court knowing it was likely that, if confirmed, she would be in a position to rule on his signature domestic policy achievement—“litigation,” Mr. Katyal noted to former Solicitor General Kagan, “of singular importance” to the Administration. Among other involvement in this matter, it appears that she was privy to discussions of legal claims and litigation strategy concerning court challenges to the PPACA. And it is apparent that she herself enthusiastically supported this legislation as a member of the Administration which is now defending it. When a former member of the Administration is in a position to rule on litigation in which she apparently had some involvement and which concerns legislation she herself supports, public confidence in the administration of justice is undermined. Your Department’s refusal to provide information to the Congress that could eliminate this apparent conflict of interest only undermines that confidence further.

The Justice Department noted at the time the Congress was considering the current mandatory recusal law for federal judges that a purpose of its stricter standards was to avoid the possibility “that public confidence in the federal judicial system may be weakened.”  We urge you to reconsider your Department’s decision not to respond to Congress’s oversight requests so that the public can have confidence in the resolution of this important litigation.

Sincerely,

Republican Leader Mitch McConnell
Republican Whip Jon Kyl
Judiciary Committee Ranking Member, Senator Charles Grassley
Senator Mike Lee

Tags: U.S. Senators, Letter to Attorney General, Eric Holder, Solicitor General, Elena Kagan, PPACA, health care law, SCOTUS, recusal To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service. Thanks!
Posted by Bill Smith at 4:52 PM - Post Link

0 Comments:

Post a Comment

<< Home


View U.S. National Debt

Don't miss anything!
Subscribe to the
ARRA News Service
It's FREE & No Ads!

You will receive a verification email
& must validate you subscribed!

You Then Receive One Email Each AM
With Prior Days Articles / Toons / More


Also, Join us at:
Facebook.com/ARRANewsService


Recent Posts:
Personal Tweets by the editor:
Dr. Bill - OzarkGuru - @arra
#Christian Conservative; Retired USAF & Grad Professor. Constitution NRA ProLife schoolchoice fairtax - Editor ARRA NEWS SERVICE. THANKS FOR FOLLOWING!

Action Links!
State Upper & Lower House Members
State Attorney Generals
State Governors
The White House
US House of Representatives
US Senators
GrassFire
NumbersUSA
Ballotpedia

Facebook Accts - Dr. Bill Smith
Pages:
ARRA News Service
Arkansans Against Big Government
Alley-White Am. Legion #52
Catholics & Protestants United Against Discrimination
End Taxpayer Funding of NPR
Overturn Roe V. Wade
Prolife Soldiers
Project Wildfire 4 Life
Republican Liberty Caucus of Arkansas
The Gold Standard
US Atty Gen Loretta Lynch, aka Eric Holder, Must Go
Veterans for Sarah Palin
Why Vote for Hillary (Satire)
FB Groups:
Arkansas For Sarah Palin
Arkansas Conservative Caucus
Arkansas County Tea Party
Arkansans' Discussion Group on National Issues
Blogs for Borders
Conservative Solutions
Conservative Voices
Defend Marriage -- Arkansas
FairTax
FairTax Nation
Arkansas for FairTax
Friends of the TEA Party in Arkansas
Freedom Roundtable
Pro-Life Rocks - Arkansas
Republican Network
Republican Liberty Caucus of AR
Reject the U.N.

Patriots
Exchange
Links

Request Via
Article Comment

Links to ARRA News
A Patriotic Nurse
Agora Associates
a12iggymom's Blog
America, You Asked For It!
Americans for a Free Republic
America's Best Choice
ARRA News Twitter
As The Crackerhead Crumbles
Blogs For Borders
Blogs for Palin
Blow the Trumpet Ministry
Boot Berryism
Cap'n Bob & the Damsel
Chicago Ray Report
Chuck Baldwin - links
Common Cents
Conservative Voices
Defeat Obama's Agenda
Diana's Corner
Greater Fitchburg For Life
Lasting Liberty Blog
Liberal Isn't Amy
Maggie's Notebook
Marathon Pundit
Patriot's Corner
Right on Issues that Matter
Right Reason
Rocking on the Right Side
Saber Point
Saline Watchdog
Secure Arkansas
Sultan Knish
The Blue Eye View
The Born Again Americans
TEA Party Cartoons
The Foxhole | Unapologetic Patriot
The Liberty Republican
The Lid
The Maritime Sentry
The O Word
The Path to Tyranny Blog
The Real Polichick
The War on Guns
TOTUS
Twitter @ARRA
Underground Notes
Warning Signs
Women's Prayer & Action
WyBlog

Editor's Managed Twitter Accounts
Twitter Dr. Bill Smith @arra
Twitter Arkansas @GOPNetwork
Twitter @BootBerryism
Twitter @SovereignAllies
Twitter @FairTaxNation

Editor's Recommended Orgs
Accuracy in Media (AIM)
American Action Forum (AAF)
American Committment
American Culture & Faith Institute
American Enterprise Institute
American Family Business Institute
Americans for Limited Government
Americans for Prosperity
Americans for Tax Reform
American Security Council Fdn
AR Faith & Ethics Council
Arkansas Policy Foundation
Ayn Rand Institute
Bill of Rights Institute
Campaign for Working Families
CATO Institute
Center for Individual Freedom
Center for Immigration Studies
Center for Just Society
Center for Freedom & Prosperity
Citizens Against Gov't Waste
Citizens in Charge Foundstion
Coalition for the Future American Worker
Competitive Enterprise Institute
Concerned Veterans for America
Concerned Women for America
Declaration of Am. Renewal
Eagle Forum
FairTax
Family Research Council
Family Security Matters
Franklin Center for Gov't & Public Integrity
Freedom Works
Gingrich Productions
Global Incident Map
Great Americans
Gold Standard 2012 Project
Gun Owners of America (GOA)
Heritage Action for America
David Horowitz Freedom Center
Institute For Justice
Institute for Truth in Accounting
Intercollegiate Studies Institute
Judicial Watch
Less Government
Media Reseach Center
National Center for Policy Analysis
National Right To Work Foundation
National Rifle Association (NRA)
National Rifle Association (NRA-ILA)
News Busters
O'Bluejacket's Patriotic Flicks
OathKeepers
Open Secrets
Presidential Prayer Team
Religious Freedom Coalition
Renew America
Ron Paul Institute
State Policy Network
Tax Foundation
Tax Policy Center
The Club for Growth
The Federalist
The Gold Standard Now
The Heritage Foundation
The Leadership Institute
Truth in Accounting
Union Facts



Blogs For Borders

Reject the United Nations

Adopt Our Troops in Prayer


Thousands of Deadly Islamic Terror Attacks Since 9/11


FairTax Nation on FaceBook
Friends of Israel - Stand with Israel
Blog Feeds
Syndicated - Get the ARRA News Service feed Syndicated!
ARRA Blog Feed

Add to Google Reader or Homepage

Add to The Free Dictionary

Powered by Blogger


  • To Exchange Links - Email: editor@arranewsservice.com!
  • Comments by contributing authors or other sources do not necessarily reflect the position the editor, other contributing authors, sources, readers, or commenters. No contributors, or editors are paid for articles, images, cartoons, etc. While having reported on and promoting beliefs associated with the former Arkansas Republican Assemblies (ARRA), this blog/site is controlled and supported by the editor. This site/blog does not advertise for money or services nor does it solicit funding for its support.
  • Fair Use: This site/blog may contain copyrighted material the use of which has not been specifically authorized by the copyright owner. Such material is made available to advance understanding of political, human rights, economic, democracy, and social justice issues, etc. This constitutes a 'fair use' of such copyrighted material as provided for in section Title 17 U.S.C. Section 107 of the US Copyright Law. Per said section, the material on this site/blog is distributed without profit to readers to view for the expressed purpose of viewing the included information for research, educational, or satirical purposes. Any person/entity seeking to use copyrighted material shared on this site/blog for purposes that go beyond "fair use," must obtain permission from the copyright owner.
  • © 2006 - 2018 ARRA News Service
Creative Commons License
Creative Commons Attribution Noncommercial Share Alike 3.0 Unported License.