Kagan and ObamaCare


By Hadley Heath

Ken Cuccinelli petitioned the Supreme Court for a review of the Virginia Case under Rule 11, a little-known rule that allows the SCOTUS to take up a case of immediate public importance.

The Supreme Court will rule on this Rule 11 request on April 15.  Cuccinelli joked that while it is improbable that the Court will say yes, there is at least a slight chance of some good news on Tax Day.

Because the decision about whether or not the Virginia Case holds “immediate public importance” will come down so soon, now is the time for Americans to seriously examine whether or not all nine Justices should be a part of ObamaCare-related decisions.  If Elena Kagan participates in the decision about Rule 11, this probably means that she does not plan to recuse herself from the actual hearing and deciding of ObamaCare-related cases.

Carrie Severino at the Judicial Crisis Network has written recently about a FOIA request (filed by CNS news) that resulted in new documents that raise more suspicion about Kagan and ObamaCare:

What we have recently learned (and many suspected beforehand) is that the administration’s defense of Obamacare was under way even before the bill became law and any lawsuit was filed. On January 8, Tom Perrelli was already organizing a meeting of DOJ bigwigs to “get thinking about how to defend against inevitable challenges to the health care proposals that are pending.” Katyal agreed that the SG’s office should be involved, adding candidly, “Let’s crush them.” He then consulted with then-SG Kagan and reported that “Elena would definitely like OSG to be involved in this set of issues.” While Katyal was to be point for the office on the issue, he added that “we will bring in Elena as needed.” 

The meeting ultimately took place on January 13, and the attendees decided to “do some anticipatory thinking about claims that will be asserted and how we will defend against them.”  They anticipated “both well-financed, sophisticated challenges, as well as numerous pro se and frivolous claims.”  After hearing the plan from his assistant (he was out of town for the meeting), Katyal agreed and said he wanted “to make sure our office is heavily involved even in the dct [i.e., district court].”  While the actual litigation had not been filed at that time, these strategy meetings likely touched on issues that did come up in the litigation (after all, they were designed to do so) and definitely could raise questions of her impartiality in the case.

Read Severino’s full piece here.


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