If Confirmed to Supreme Court, Kagan May Have To Recuse Herself in Health Care Cases

By Matt Cover | May 17, 2010 | 7:02 PM 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)

(CNSNews.com) – If confirmed to the Supreme Court, Elena Kagan may have to recuse herself if the health care reform law comes before the high court. This is the case because as solicitor general of the United States in the Obama administration, Kagan may have helped craft a legal defense of the law or given advice to Congress or the White House on how to draft the statute.
Historically, Supreme Court justices recuse themselves from hearing cases in which they have previously been involved. Kagan, who as solicitor general is responsible for defending the federal government in federal court and before the Supreme Court, may have been involved in responding to lawsuits challenging the constitutionality of the health care reform.
To date, more than 13 state attorneys general have filed lawsuits, challenging the legality and constitutionality of the health care bill that Obama signed into law in March.
Kagan may also have given advice to either the White House or Congress on how to write the health care legislation – particularly its individual mandate (to purchase health insurance) and employer mandate provisions – so that it would pass constitutional muster.
Previous solicitors general, particularly in the George W. Bush administration, have consulted on possible legal challenges to controversial policies. Under Bush, the solicitor general’s office was consulted on possible challenges to the government’s terrorist detainment policies, helping to design them so they might withstand constitutional challenge.
There is historical precedent for former solicitors general recusing themselves from cases they worked on prior to ascending to the Supreme Court. Justice Thurgood Marshall, for example, recused himself from 53 cases that related to his service as solicitor general – a position that he, like Kagan, held before being nominated to the high court.
Most of those cases were ones in which Marshall participated directly, usually signing his name to the arguments that wound up being presented before the Supreme Court. In other cases, however, Marshall recused himself from cases in which he, as solicitor general, gave advice in drafting the government’s appeal in lower courts.
Carrie Severino, chief counsel for the Judicial Crisis Network, raised the recusal issue in an interview with CNSNews.com, questioning whether Kagan’s work as solicitor general might present a conflict of interest.
“We don’t know for sure whether she would even be able to sit on that [health care law] case,” she said. “As solicitor general she’s part of the administration, and there may be cases on which she has already conferred with the president on issues she’s already been involved with. I think the proper role would be for her to recuse herself if that is the case.”
Ed Whelan, president of the Ethics and Public Policy Center, told CNSNews.com that even if Kagan merely provided advice on the constitutionality of health reform, she may have to sit out the case.
“If she gave advice on a specific legal question, even if it weren’t a case pending [before the court] and that particular legal question comes up later, that would be something that ought to trigger a recusal,” he said.
Several of those questions, which were the subject of considerable public debate over the many months Congress took to draft and pass the reform, have come up. The conservative Thomas More Law Center has sued the federal government, challenging the constitutionality of the individual mandate to purchase health insurance.
The government has, in its initial defense, employed the same arguments in court that were used by both the administration and Congress to defend the mandate from political opponents, suggesting that these arguments were being formulated in anticipation of legal challenges.
Given that several state attorneys general, including Bill McCollum of Florida and Kenneth Cuccinelli of Virginia, threatened to sue the federal government over the health reform law, it appears likely that legal counterarguments were discussed and prepared in advance.
When asked by CNSNews.com whether the solicitor general’s office has had any involvement in the health care reform process, either in a legal or advisory capacity, the Justice Department refused to answer, saying only that the Department’s Civil Division was handling the litigation of health care reform lawsuits.
While it is true that the Civil Division handles the litigation of cases in which government or government officials are involved, it is the solicitor general who determines the government’s strategy for appealing cases it loses and generally devises a legal strategy for defending the government in court.
“Ultimately, it is the responsibility of the solicitor general to ensure that the United States speaks in court with a single voice,” the Civil Division’s Web site states.