As the Legal Times's Tony Mauro reports today, both the Wall Street Journal editorial board and the Judicial Crisis Network are asking whether Elena Kagan would, if appointed the Supreme Court, be required to recuse herself from cases involving the Obamacare litigation. The WSJ and JCN ask whether Solicitor General Kagan contibuted to the Obama administration's internal deliberations as to litigation challenging the constitutionality of Obamacare. At her hearing, Kagan answered that she hadn't when Senator Coburn asked her, "was there at any time you were asked in your present position to express an opinion on the merits of the health care bill?" As the WSJ and JCN note, Sen. Coburn's precise choice of words was unfortunate, because his reference to the "merits" of the "bill" makes it difficult to discern whether Kagan's answer referred broadly to all legal questions involving Obamacare -- including the implications of litigation.
In speculating whether Solicitor General Kagan was involved in such discussions, it's important to keep in mind that the Obama administration previously sought the solicitor general's opinions in rather unorthodox manner. In April 2009, the Washington Post reported that after the Justice Department's Office of Legal Counsel concluded that the president could not lawfully sign a bill giving the District of Columbia a seat in the House, Attorney General Holder took the unusual step of asking the solicitor general's office (which did not yet include Elena Kagan) for a second opinion, the OLC's unconstitutionality determination notwithstanding. According to the Post, Democratic and Republican veterans of the Justice Department agreed that Attorney General Holder's manuever, while not unprecedented, was "unusual."
Given that Obamacare, in its various forms, was the subject of extensive constitutional debate in the months leading up to its enactment, we must ask: Did Attorney General Holder ask for any sort of backstop opinion -- involving not just the bill that eventually became law, but also other versions of the bill, or even about hypothetical, general types of provisions that ultimately were included in the bill -- from Solicitor General Kagan, before or after Obamacare was signed into law?