Saturday, December 10, 2011

Kagan Was Brought Into Loop on Mark Levin’s Obamacare Complaint

( - Internal Justice Department email communications made just days before the House of Representatives passed the Patient Protection and Affordable Care Act show that then-Solicitor General Elena Kagan was brought into the loop as DOJ began preparing to respond to an anticipated legal complaint that Mark Levin and the Landmark Legal Foundation were planning to file against the act if the House used a procedural rule to “deem” the bill passed even if members never directly voted on it.

In another internal DOJ email communication that same week, Kagan alerted the chief of DOJ’s Office of Legal Counsel to the constitutional argument that a former U.S. Appeals Court judge was making against the use of this rule.

Then, during Kagan’s Supreme Court confirmation process four months later, Republicans on the Senate Judiciary Committee asked her in writing if she had “ever been asked about your opinion” or “offered any view or comments” on the “the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148 [PPACA], or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?"

Kagan answered both questions: “No.”

The DOJ emails from the week before the health-care bill passed--which were released as the result of a Freedom of Information Act lawsuit filed by the Media Research Center (’s parent organization) and Judicial Watch--raise additional questions about whether Kagan should recuse herself from judging the case against PPACA when the court considers it early next year.

A federal law—28 U.S.C 455—says that a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned” or if he “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

In the days leading up to the March 21, 2010 House vote on the health-care bill, one underlying constitutional issue that became part of the national debate was whether the House could approve the Senate version of the bill without ever directly voting on it by using a procedural rule crafted by then-House Rules Chairman Louise Slaughter (D.-N.Y.)

On March 10, 2010, National Journal’s Congress Daily published a brief story under the headline, “Slaughter Preps Rule to Avoid Direct Vote on Senate Bill.”

The next morning, Washington Examiner Editorial Page Editor Mark Tapscott posted a blog entry citing the Congress Daily report. “In the Slaughter Solution,” Tapscott wrote, “the rule would declare that the House ‘deems’ the Senate version of Obamacare to have passed the House. House members would still have to vote on whether to accept the rule, but they would then be able to say they only voted for the rule, not the bill itself.”

That night on his nationally syndicated radio show, Landmark Legal Foundation President Mark Levin, who served as chief of staff to Attorney General Ed Meese in the Reagan Justice Department, gave a seven-minute presentation on the Slaughter rule. Levin explained why, in his view, use of the rule would violate Article 1, Section 7, Clause 2 of the Constitution which requires both houses of Congress to vote on a bill before it can be presented to the president for his signature.

Levin concluded his discussion by vowing to file a lawsuit against the health-care bill if House Democrats used the Slaughter rule to send it to the president without a direct vote.

“I can tell you, if they pursue this process and try to impose this kind of a law without actually passing a statute, that I will be in a race with scores of others to the courthouse to stop this,” said Levin. “I can’t think of a more blatant violation of the United States Constitution than this.”

(Click below to listen to Mark Levin's March 11, 2010 explanation of why he believed the Slaughter rule was unconstitutional and his plan to file suit against the administration if it was used on the health-care legislation:)

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