Supreme Court Justice Elena Kagan More Involved in Defense of Obamacare Then She Let On

Here are some emails that were discovered by Judicial Watch which show evidence of Elena Kagan's involvement in the defense of Obamacare. 

From Judicial Watch: According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:

Subject: Re: Health Care Defense:

Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]

On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

In another email exchange that took place on January 8, 2010, Katyal’s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. “Could you figure out the right person or people for that?” Hauck asked. “Absolutely right on. Let’s crush them,” Katyal responded. “I’ll speak with Elena and designate someone.”

However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal position changed significantly as he began to suggest that Kagan had been “walled off” from Obamacare discussions.

For example, the documents included the following May 17, 2010, exchange between Kagan, Katyal and Tracy Schmaler, a DOJ spokesperson:

Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: “Has Elena been involved in any of that to the extent SG ]Solicitor General’s] office was consulted?...

Katyal to Schmaler: “No she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit.”

Katyal (forwarded to Kagan): “This is what I told Tracy about Health Care.”

Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”

Included among the documents is a Vaughn index, a privilege log which describes records that are being withheld in whole or in part by the Justice Department. The index provides further evidence of Kagan’s involvement in Obamacare-related discussions.

For example, Kagan was included in an email chain (March 17–18, 2010) in which the following subject was discussed: “on what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” The subject of the email was “Health Care.” Another email chain on March 21, 2010, entitled “Health care litigation meeting,” references an “internal government meeting regarding the expected litigation.” Kagan is both author and recipient in the chain.

The index also references a series of email exchanges on May 17, 2010, between Kagan and Obama White House lawyers and staff regarding Kagan’s “draft answer” to potential questions about recusal during the Supreme Court confirmation process. The White House officials involved include: Susan Davies, Associate White House Counsel; Daniel Meltzer, then-Principal Deputy White House Counsel; Cynthia Hogan, Counsel to the Vice President; and Ronald Klain, then-Chief of Staff for Vice President Biden. The DOJ is refusing to produce this draft answer.

The Vaughn index also describes a March 24, 2010, email exchange between Associate Attorney General Beth Brinkmann and Michael Dreeben, Kagan’s Deputy Solicitor General, with the subject header, “Health Care Challenges:” “…I had a national conference call with the Civil Chiefs. A memo also went out the day before. I am forwarding right after this. Let’s discuss if you have more ideas about what to do.”

As reported by CNS News:

In the questionnaire she filled out for the Senate Judiciary Committee during her confirmation process, Kagan said she would abide by the “letter and spirit” of 28 U.S.C. 455 in deciding whether she felt compelled to recuse herself as a Supreme Court Justice from any case that came before the High Court.

According to the law, a ‘justice … shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.’ It further says any justice ‘shall also disqualify himself … [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.’

“Any reasonable person would read these documents and come to the same conclusion: Elena Kagan helped coordinate the Obama administration’s defense of Obamacare. And as long as the Justice Department continues to withhold key documents, the American people won’t know for sure whether her involvement would warrant her recusal from any Obamacare litigation that comes before the High Court,” said Judicial Watch President Tom Fitton.

There is a definite connection between Supreme Court Justice Elena Kagan and her playing at least a minor role in the White House's defense of the health care law.  In my opinion she needs to recuse herself from all cases which challenge Obamacare's constitutionality. 

The Obama Administration, the Health Care Law, and Double Counting, Again?

Back in November of 2010 Reason.com noted that Donald Berwick refused to comment when confronted during a Senate hearing about the administration's claim that the Patient Protection and Affordable Care Act extends the Medicare Trust Fund.  It seems that Donald Berwick is standing by the Obama administrations double counting of savings in the new health care law.

From Reason.com:

For those in need of a refresher, here’s Medicare’s actuary:

In practice the improved (Medicare hospital insurance) financing cannot be simultaneously used to finance other Federal outlays (such as the coverage expansions) and to extend the trust fund, despite the appearance of this result from the respective accounting conventions.

And here’s CBO:

To describe the full amount of HI trust fund savings as both improving the government’s ability to pay future Medicare benefits and financing new spending outside of Medicare would essentially double-count a large share of those savings.

Now you see that both the CBO and Medicare actuary's analysis of savings from the health care law differ from that of the Obama administration.  So, basically, both the CBO and medicare actuary findings conclude that the Obama administration's wrong. Maybe, that's why Berwick refused to answer the question?

Recently, Rep. John Shimkus pointedly forced Health and Human Services Secretary Sebelius to admit to the fact that the Obama administration is double counting the savings from the health care law.  The Obama administration is using trickery to give the appearance that there can be savings in the budget while using that same savings to fund another program - "the $500 billion cut in Medicare that supposedly goes for both cost control and to fund other parts of the program."   



From HotAir.com:

In her first appearance before the House Energy and Commerce Health Subcommittee since the health-care law passed, Kathleen Sebelius responded to a line of questioning by Republican Rep. John Shimkus of Illinois about whether $500 billion in Medicare cuts were used to sustain the program or pay for the law.

“There is an issue here on the budget because your own actuary has said you can’t double-count,” said Shimkus. “You can’t count — they’re attacking Medicare on the CR when their bill, your law, cut $500 billion from Medicare.”

He continued: “Then you’re also using the same $500 billion to what? Say your funding health care. Your own actuary says you can’t do both. […] What’s the $500 billion in cuts for? Preserving Medicare or funding the health-care law?

Sebelius’ reply? “Both.”

In other words, money can only be used once. Since the Medicare savings is being spent elsewhere on expanded health care coverage, it is not really being employed to extend Medicare solvency. To claim an improvement in Medicare financing is to mislead about the effects of recent legislation.

A couple days ago I received an email from my Congressman, Rep. Tim Murphy, that reveals more double counting in the health care law -  an $86 billion Ponzi scheme in the health care law.

"Efforts to calculate the true cost of the healthcare law continued at the Energy and Commerce Committee on Thursday, where a hearing explored the financial integrity of a new long-term insurance “benefit” called the Community Living Assistance Services & Supports (CLASS) program. Intended to provide spending cash to workers who become disabled, CLASS has been characterized by accountants, and even the Administration’s own Secretary of Health and Human Services Kathleen Sebelius, as “totally unsustainable.”

"The CLASS program is a new government entitlement established by the healthcare law that would be funded with premiums deducted directly from workers’ paychecks. If a worker became disabled and had paid into the program, they would collect $50 a day from the government. But the Congressional Budget Office has suggested that the CLASS program will attract the sickest and most at-risk beneficiaries, therefore requiring massive taxpayer subsidies to keep CLASS afloat beyond ten years.

"During questioning by Rep. Murphy at Thursday’s hearing, a senior Administration official admitted that instead of using premiums paid into CLASS to pay benefits, the government was using the premiums to pay for the healthcare law.

“If any insurance company began collecting premiums and then tried to spend $86 billion before paying out a single penny in benefits, it would rightly be prosecuted,” said Murphy. “Last time I checked, such Ponzi schemes are illegal in this country, and this is just the newest in a long string of programs that will have to be de-funded or repealed outright.”  

Howard Dean Admits Obamacare will Wreck Insurance, Doesn’t “Care” If It’s Unconstitutional

H/T Expose Obama