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发帖数: 29846 | 1 By Terence P. Jeffrey
December 14, 2011
Considering the debate around President Barack Obama's health care plan and
the lawsuits filed against it, then-Solicitor General Elena Kagan's written
answers to some of the 13 written questions relating to Obamacare that
Senate Judiciary Committee Republicans submitted to her during her Supreme
Court confirmation process were remarkably simple and straightforward.
"No," she said.
That was how she answered question No. 2, which inquired if she had ever
been asked her opinion about the merits or underlying legal issues in
Florida's lawsuit against Obamacare.
That was also the way she answered question No. 3, which asked: "Have you
ever been asked your opinion regarding any other legal issues that may arise
from Pub. L. No. 111-148?" - aka Obamacare.
Thus, during the time Obamacare was debated, enacted and targeted by
lawsuits, no one in Obama's administration bothered to ask his solicitor
general about any legal issue that might arise from it.
But two months before Kagan told the Judiciary Committee she had never been
asked her opinion regarding any legal issue that might arise from Obamacare,
her own top deputy sent her a memo telling her that she had "substantially
participated" in her office's handling of Golden Gate Restaurant Association
v. San Francisco.
The memo is among documents the Justice Department released in response to
Freedom of Information Act lawsuits filed by the Media Research Center (the
parent organization of CNSNews.com) and Judicial Watch.
The Golden Gate case, Kagan's own office would argue to the Supreme Court,
had become inseparable from Obamacare.
In 2006, San Francisco enacted a municipal universal health care plan. The
Golden Gate Restaurant Association (representing local restaurants) sued,
arguing that San Francisco's law was pre-empted by the federal Employee
Retirement Income Security Act, which regulates employee benefits plans. A U
.S. district court agreed, but the U.S. Court of Appeals for the 9th Circuit
did not.
The restaurant association appealed to the Supreme Court. On Oct. 5, 2009,
as the national debate over Obamacare heated up, the court asked Solicitor
General Kagan to submit a brief on whether it should take up the case.
Deputy Solicitor General Edwin S. Kneedler handled the case for Kagan's
office.
On March 23, 2010, Obama signed the Patient Protection and Affordable Care
Act.
Ten days later, Kagan sent Kneedler an email about the brief in the Golden
Gate case.
"Ed - could you give me a time of arrival on (name redacted) and (name
redacted)?" Kagan said.
The redacted names apparently belonged to attorneys working under Kneedler's
supervision.
Kneedler emailed back to Kagan: "(Name redacted) said he thought he could
get the draft in Golden Gate to me by early the week after next."
Immediately after the word "next," the Justice Department has redacted about
five lines of text from this email.
What did DOJ remove? An affidavit DOJ submitted to the court in response to
MRC's FOIA lawsuit explains the removed material as follows: "The redacted
information includes a DOJ attorney's thoughts on specific legal arguments
and strategies relevant to one of the cases cited in the email exchange."
Twelve minutes later, Kagan emailed back to Kneedler: "Ok, let me know."
On May 10, 2010, President Obama announced he was nominating Kagan to the
Supreme Court. The next day, Kagan's top deputy, Neal Katyal, sent an email
to two other deputies, Kneedler and Malcolm S. Stewart.
"As I understand it," Katyal wrote, "Elena is going to recuse from all new
cases. Are there any CVSGs you have due by cutoff in which she has not
participated at all (either in meetings, phone calls, discussions with you,
etc)? She has participated in all of mine, what about yours?"
Five minutes later, Kneedler emailed back, telling Katyal the Golden Gate
case was connected to Obamacare and that he had discussed the case with
Kagan.
"The Golden Gate case presents special considerations because of the
possible nexus to the Health Care bill," Kneedler wrote. "I think I did have
some minimal discussions with her about that case."
The next day, Katyal sent an email to all of Kagan's deputies, telling them
Kagan would "not be participating in new cases."
However, "There is a small universe of cases in which Elena has
substantially participated already (this includes CVSGs where she chaired
meetings, etc.)," Katyal wrote. "As to those cases, she very well may sign
the briefs. With this email, I'd ask each Deputy sometime today to send me a
full list of cases that you think fall into that category. Exclude matters
in which you have had short conversations with her. This isn't a list
regarding her recusals at the Supreme Court should she be confirmed; rather
it is a list for her so that she knows what cases she might be signing
briefs in."
In the list he emailed back to Katyal, Kneedler said: "Golden Gate - I
discussed this with Elena several times (here DOJ has redacted approximately
a full line of text). Especially now that health care has passed, she may
not want to be involved in that brief."
What did DOJ remove from this email? Referring to this redaction and another
two paragraphs down, the DOJ affidavit said: "The redacted information
contains DOJ attorneys' thoughts on the formulation of the government's
litigation position in two cases that were pending before the United States
Supreme Court and internal legal analysis."
The next day, Katyal wrote a memorandum to Kagan. The subject was: "CURRENT
CASES THAT YOU HAVE WORKED ON"
"The below contains a list of cases in which we feel that you have
substantially participated," Katyal told Kagan.
The list included this: "Golden Gate - Ed discussed with Elena several times
. (Here and two paragraphs down DOJ has redacted some of the text.)"
The DOJ affidavit explains: "The redacted information contains a DOJ
attorney's thought on the formulation of the government's litigation
position in two cases that were pending before the Supreme Court."
Fifteen days after Katyal wrote this memo to Kagan informing her that she
had "substantially participated" in the Golden Gate case, the solicitor
general's office submitted its brief to the Supreme Court. Kagan did not
sign it. Katyal, Kneedler and several other government attorneys did.
The 26-page brief cited the Patient Protection and Affordable Care Act about
a dozen times by name and another half a dozen times as "the federal
legislation" or "the new federal legislation." It argued that the Supreme
Court should not take up the Golden Gate case because the federal regulatory
framework in which it needed to be judged was dependent on the new
regulations that would be written to implement Obamacare.
CNSNews.com asked Deputy Solicitor General Kneedler: "During the time that
Elena Kagan was solicitor general, did you ever have any verbal or written
communications with her about any connection between the Patient Protection
and Affordable Care Act and the Golden Gate Restaurant Association case? If
you did have such a communication or communications, when did it occur, what
did you say and what did she say?"
Kneedler did not respond.
---
"To send men to the firing squad, judicial proof is unnecessary."
--- Ernesto "Che" Guevara
看某些人的帖子有感，五千年的奴性文化的熏陶，真不是盖的。
管你在美国呆一辈子，也还一样。 |
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