FoxNews has published a very important article detailing how the law and history strongly suggest that Elena Kagan must recuse herself from hearing the ObamaCare litigation. At stake in the case is whether the Supreme Court can maintain its status as an impartial court in the eyes of the American people. For if Kagan sits in on the case and votes on the outcome, the American people's faith in the court will be diminished.

Read the full FoxNews commentary here.

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A friend of AHEC, former Congressman Bob Beauprez (R-CO), has written at A Line of Sight about the growing number of questions concerning Supreme Court Justice Elena Kagan's failure to recuse herself in the ObamaCare case even though federal law requires her recusal.

Beauprez writes:

"Four Republican Senators have joined the growing chorus of elected officials and leadership of citizen groups calling for Justice Elena Kagan to recuse herself from the ObamaCare case.... In a letter to Attorney General Eric Holder, Republican Leader Mitch McConnell, Whip Jon Kyl, Ranking Republican Member of the Judiciary Committee Chuck Grassley, and Utah Senator Mike Lee called out the 'questionable manner' that DOJ and Holder are handling requests for information regarding Kagan involvement with the passage and preparations for legal defense of the legislation when she served as Obama's Solicitor General."

And:

"Her 'impartiality' is seriously suspect, the Senators explain, by a March 2009 email Kagan sent to DOJ Legal Adviser Larry Tribe regarding the impending passage of the legislation. Entitled, 'fingers and toes crossed today!' Kagan gleefully wrote, "I hear they have the votes, Larry!! Simply amazing. Holder and the DOJ 'has rejected all Congressional oversight requests for information about her role in the Obama Administration's defense of this law (ObamaCare),' the Senators wrote, and in so-doing have invited far more questions about what the Administration is hiding. 'Because of the highly questionable manner in which your Department is handling this important issue,' the Senators said in their letter, 'we write to underscore the importance to the rule of law of an informed resolution of this question.'" 

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The American Healthcare Education Coalition joined nearly 100 other organizations in signing a letter to Rep. Lamar Smith (R-TX), Chair of the House Judiciary Committee, requesting that the Committee hold hearings on Supreme Court Justice Elena Kagan's role in developing the legal defense of ObamaCare. Before becoming a Justice on the Supreme Court, Kagan worked at the Department of Justice as Solicitor General. At the time of ObamaCares' passage in Congress she sent emails to her DOJ colleagues that clearly shows her bias in the ObamaCare case. In addition, federal law requires that she recuse herself - which she has not done.  

Read the full text of the letter, here.

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A November 15, 2011 editorial from Investors Business Daily called for Elena Kagan to recuse herself from the ObamaCare case when it comes before the Supreme Court. The editorial states:

"If Justice Elena Kagan were a person of character, she would sit out the Supreme Court's hearing of the challenge to the Patient Protection and Affordable Care Act."

"We also know that Kagan enthusiastically supported ObamaCare. This is made clear in emails released last week by the Justice Department."

"Nearly lost in this is the possibility that Kagan lied during her confirmation. She told the Senate Judiciary Committee that she had not been asked about the legal issues of ObamaCare nor had she offered any views on them. The emails, however, seem to tell a different story. Two exclamation points plainly show that in her legal opinion, ObamaCare was constitutional."

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The Department of Justice has denied Congressional requests for the production of documents related to Kagan's involvement in the preparation for the defense against legal challenges to ObamaCare.  Attorney General Eric Holder testifies to Congress he was unaware of the request altogether.

Read more about the stonewalling by DOJ here.  At issue in this case is not simply whether Kagan should recuse herself but also the continued faith of the American people in their justice system. Federal law (28 USC 455) provides that: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." This includes cases where the judge "has a personal bias" (Kagan had sent emails praising the ultimate passage of ObamaCare) and "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 in controversy (Kagan helped craft DOJ's ObamaCare defense). 

Kagan had promised to obey the "letter and spirit of the law."  But the typical time for her to announce her recusal has come and gone, typically a Supreme Court Justice would announce recusal on the day the court announces it will hear a case.

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Following the Supreme Court's announcement that they would hear oral arguments in the challenges to ObamaCare's individual mandate, the questions of whether Elena Kagan should recuse herself are growing. AHEC's friend, former Congressman Bob Beauprez, writes on A Line of Sight that: 

"Leaders of two dozen citizen organizations are urging the House Judiciary Committee to hold hearings on the need for Elena Kagan to recuse herself from the ObamaCare case now scheduled to be heard by the Supreme Court.  In a letter to Judiciary Chairman  Lamar Smith (full text here), and copied to House Republican Leadership, the group concludes that "a reasonable person would certainly have sufficient basis to question the impartiality of Justice Kagan if she were permitted to prepare the defense of a case as an advocate and then switch roles and judge the defense of the same case as a justice." (Emphasis included)."

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On the day the U.S. House of Representatives passed ObamaCare, then DOJ official (now Supreme Court Justice) sent an email to a colleague stating: "I hear they have the votes, Larry!! Simply amazing,”  Does anyone doubt that based on this email she cannot possibly be impartial as a Justice on the Court. She must recuse herself.

Read the full article here.

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Carrie Severino makes the case on National Review Online why Supreme Court Justice Elena Kagen should recuse herself from hearing the ObamaCare lawsuits when the case comes before the Supreme Court. Ms. Severino makes an extremely articulate and cogent argument in favor of recusal.

Many Americans may be unaware that before being confirmed to the court, Kagen was in charge of the office at the Department of Justice that is principally responsible for defending ObamaCare in the courts. In other words, one has to doubt whether she can be fair-minded in hearing a case when she already has been involved in constructing the very arguments that she will now hear while serving on the Court. These facts - and the need for an impartial justice system - require her to recuse herself from the case.

Read Severino's full article here.

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A federal judge appointed by former President Bill Clinton has ruled that the Department of Justice (DOJ) does not have to release emails that Elena Kagen sent from her official, taxpayer-funded, government email address after she was nominated by President Obama to the Supreme Court. Judicial Watch had sought the emails as part of a Freedom of Information Act (FOIA) request.  Judge Ellen Segal Huvelle ruled against releasing the emails because they were sent by Kagen for a “purely personal objective” which was to get on the High Court.

The basis for allowing DOJ to cover up and hide these emails - when Kagen's impartiality as a judge in hearing the lawsuit over ObamaCare is in question - undermines the people's faith in the judicial system. Judge Huvelle seems to be creating a new form of privilege under FOIA - one that protects government officials privacy and frees them from the possibility of embarrassment from disclosure.  No such exceptions exist under the federal FOIA law. As a matter of principle, government officials should have little expectation of privacy related to the use of government (public) email when it is used for private purposes.

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