Citing Evidence They Call 'Contradictory' to Kagan's Confirmation Testimony, 49 Lawmakers Call for Judiciary Committee Investigation

By Terence P. Jeffrey | July 1, 2011 | 8:18 AM EDT

President Obama introduces Solicitor General Elena Kagan as his nominee for the U.S. Supreme Court in the East Room of the White House on Monday, May 10, 2010. (AP Photo/Susan Walsh)

( - Forty-nine members of the U.S. House of Representatives--including the chairman of the House Oversight Committee, the chairman of the Republican Policy Committee and two presidential candidates--are pointing to evidence they say is "contradictory" to Supreme Court Justice Elena Kagan's confirmation testimony and calling for the House Judiciary Committee to investigate the matter.

The lawmakers also say they believe that evidence already made public shows that Kagan must recuse herself from any court cases involving the health care bill signed into law by President Barack Obama while she was serving as Obama's solicitor general.

"We respectfully call upon the House Judiciary Committee to promptly investigate the extent to which U.S. Supreme Court Justice Elena Kagan was involved in preparing a legal defense of the Patient Protection and Affordable Care Act (PPACA) during her tenure as Solicitor General," the 49 lawmakers wrote in a letter to Rep. Lamar Smith (R.-Texas), the chairman of the Judiciary Committee, and Rep. John Conyers (D.-Mich.), the ranking member of the committee.

"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 pointed to documents released by the Justice Department as the result of a Freedom of Information Act request that was filed by on May 25, 2010 and that is now the subject of a federal court case pitting the Media Research's parent organization--and the U.S. Justice Department, which is asking a federal judge to block any further release of documents sought under the FOIA request.

Rep. John Fleming (R.-La.) was the lead signer of the letter. Other signers include House Oversight and Government Reform Chairman Darrell Issa (R.-Calif.), Republican Policy Committee Chairman Tom Price (R.-Ga.), and Representatives Michele Bachmann (R.-Minn.) and Ron Paul (R.-Texas), who are presidential candidates.  Eleven of the members who signed the letter are physicians, including Fleming, Price and Paul.

(The Justice Department's initial 68-page March 15, 2011 response to's FOIA request--which includes email communications between Kagan and her deputies in the Office of Solicitor General--can be viewed here.)

"Regrettably the Justice Department has been uncooperative to date with repeated FOIA requests that seek the full body of relevant emails from the Office of the Solicitor General that would reveal the scope of Kagan's involvement in PPACA defense activities," the 49 congressmen said in their letter to Chairman Smith and Ranking Member Conyers.

The documents relating to Kagan and the health-care issue that have been released thus far by the Justice Department are the result of a Freedom of Information Act request filed by in May 25, 2010--before Kagan's confirmation hearings. The FOIA request sought three categories of records: 1) those that reflected communications Kagan had had or meetings she had attended personally or electronically in which the administration's health care reform plan was a topic, 2) those that reflected communications she had had or meetings she had attended personally or electroncially in which legal challenges to the health-care reform bill President Obama signed was a topic, and 3) those that reflected communications she had had or meetings she had attended personally or electronically in which there was discussion of whether Kagan ought to recuse herself from any matter as solicitor general because it might later come before her were she confirmed to a federal court.

The Justice Department stalled on producing documents relevant to the request and on Nov. 23, 2010 the Media Research Center sued in federal court to make them comply with the Freedom of Information Act.

In two initial contradictory response letters to the FOIA request in June 2010--just before Kagan's confirmation hearings in the Senate Judiciary Committee--the Justice Department at first said it was exempt under the FOIA law from responding to's request, but then it withdrew that letter and said in a second letter that it would prepare a response once clarified two points. Both letters came from Valerie Hall, the executive officer in Kagan's Office of Solicitor General.

The first clarification Hall said the solicitor general's office wanted was what was meant in's FOIA request by the term “the administration’s health-care reform plan.” The second was what was meant by the term “any particular case” in the prong of the FOIA request asking for any records related to any discussions or meetings Kagan might have had about recusing herself from cases as solicitor general because they might later come before her were she confirmed to a federal court. sent the Justice Department the clarifications the same day the Justice Department asked for them.

The House members signing their letter to the Judiciary Committee calling for an investigation of Kagan's involvement in Obamacare noted in the letter that federal law prohibits a Supreme Court Justice from participating in a case where her impartiality might be reasonably questioned or where she expressed an opinion on the matter while serving in government office.

"As you know," the wrote, "Section 455 of Title 28 of the United States Code establishes unambiguous conditions in which federal judges must recuse themselves from proceedings in which their impartiality might reasonably be questioned," the lawmakers wrote. "According to the law, a justice should recuse themselves in cases 'where he has served in governmental employment and in such capacity served as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.'

"Even from the limited number of DOJ emails released to date through a Freedom of Information Act lawsuit, it is evident that Justice Kagan was involved in PPACA defense activities to a degree that warrants her disqualifications from related proceedings as specified by Section 455," the lawmakers said.

During her Senate confirmation process, Republicans on the Senate Judiciary Committee asked Kagan a series of written questions probing the possibility that in her role as solicitor general--where it was her job to defend the administration's position in federal court cases--she might have been involved in the cases challenging President Obama's health care law or at least discussed the underlying legal and constitutional issues arising from any proposed health care legislation.

Two questions the senators asked took in the health-care issue with a very broad sweep.

One question asked Kagan: “Have you ever been asked about your opinion regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

Another question asked Kagan: “Have you ever offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to any potential litigation from such legislation?”

Kagan’s answered both question with a simple, unambigious, one-word answer: “No.”

The initial limited number of emails released by the Justice Department in response to's FOIA request revealed that on Jan. 8, 2010--when the Obama administration first started planning to defend against what the Justice Department viewed as inevitable lawsuits against the president's health-care bill--Kagan personally assigned her top deputy, Neal Katyal, to handle the issue. 

"You should do it," she told Katyal.

When Florida and Virginia filed suit against President Obama's health care law the same day it was signed in March 2010, Kagan had not yet been nominated to the Supreme Court, and was acting in full capacity as solicitor general. Katyal, whom she assigned to the issue, ended up signing documents in the cases and arguing them for the administration in court.