Judge blocks release of government documents over Kagan's role in health care law
October 14th, 2011
04:44 PM ET
11 years ago

Judge blocks release of government documents over Kagan's role in health care law

Washington (CNN) - A federal judge on Friday turned aside a request the Justice Department turn over more documents related to the role Justice Elena Kagan played in appeals over the sweeping health care law, while she was a top Obama administration official.

Two conservative groups –Judicial Watch and Media Research Center– had separately sued, calling "inadequate" the documentation earlier released by the government, following a Freedom of Information Act request.

Other conservative groups have questioned whether Kagan should participate in deciding the constitutionality of the healthcare law, which is expected to be taken up by the justices early next year. It promises to be among the most significant issues taken up by the high court in many years.

Before joining the high court in August 2010, Kagan was the administration's solicitor general, the top government lawyer handling appeals to the Supreme Court. Her nomination by President Obama in May 2010, and the weeks leading up to it, came at a time when Congress had passed –and the president signed– the Patient Protection and Affordable Care Act. The healthcare reform law would significantly change how Americans receive medical services, and has been the subject of six current appeals pending at the high court. Twenty-eight states and dozens of individual plaintiffs have opposed the law.

The Justice Department had turned over some documents under the FOIA request, but redacted or withheld others. The suing groups argued the unreleased material would include details of senior Justice Department meetings Kagan may have attended in the first three months of 2010, where legal strategy over defending the healthcare law could have been discussed.

But U.S. District Court Judge Ellen Segal Huvelle concluded the government need not turn over more paperwork than has already been released.

"Plaintiffs' argument, that the topics within the FOIA request must have been discussed at these meetings and that records related to this must have existed, is simply conjecture and is therefore insufficient to justify a finding that the search was inadequate," ruled Huvelle.

Some of the documents already made public indicate Kagan was deliberately kept out of the loop on most significant department matters beginning in March 2010, when she was informed the president was seriously considering nominating her to sit on the high court. Justice John Paul Stevens –whom Kagan replaced– announced April 9 that year he would retire after 35 years on the bench.

Kagan's chief deputy at the time –Neal Katyal– eventually became the office's point person for defense of the PPACA beginning around March 20, 2010, emails revealed. Katyal later took over Kagan's job on an acting basis, and has since left the solicitor general's office.

Judicial Watch and Media Research Center complained some emails between Kagan and Katyal were released, but not other internal correspondence from Kagan's other deputies. And the conservative groups said the search parameters the department used to complete the FOIA request were not thorough enough. The judge also dismissed those complaints.

"Plaintiffs' FOIA requests did not set forth a discrete list of search terms, and even if [the plaintiffs] had included such a list, there is no bright-line rule requiring agencies to use the search terms proposed in a FOIA request."

Media Research Center operates the CNSNews.com web site.

The Republican-controlled House Judiciary Committee is also looking into Kagan's role in the healthcare appeals.

Congressional Democrats have separately called on Justice Clarence Thomas to recuse himself from the healthcare appeals, citing his lapse in reporting the income of his wife, as required by federal disclosure laws. Virginia Thomas had worked for, and later founded, her own conservative advocacy group. Since Virginia Thomas has openly opposed the healthcare bill, many liberals have said her political activities raise questions about Justice Thomas' own judicial independence and impartiality.

The lawsuits involving Kagan is Media Research Center v. U.S. Department of Justice (cv-10-2013) and Judicial Watch v. U.S. Department of Justice (cv-10-0426).

Filed under: Elena Kagan • Health care • President Obama
soundoff (18 Responses)
  1. Former Republican, now an Independent

    These republicans are still smarting since the American voters learned of the 8 years of shady corruption during the Bush/Cheney years. They are desperately trying to find somthing wrong in the democratic party with all of these random "witchhunts".

    October 14, 2011 05:00 pm at 5:00 pm |
  2. thomas

    Two conservative groups –Judicial Watch and Media Research Center–

    Imagine a country with out obstructionist !

    Obama 2012

    October 14, 2011 05:01 pm at 5:01 pm |
  3. Julia Craft

    Seriously.......the President made him quit his job to join his Father's campaign....Mrs. Perry seems more dillusional than her husband...sounds like to me the son made a choice...

    October 14, 2011 05:01 pm at 5:01 pm |
  4. Liesofthefoxists/fascists

    More right-wing smoke & mirrors BS.
    They are just trying to draw attention away from Big Mama's (Mrs. Clarence Thomas) taking a huge $500K donation (bribe) into her right wing tee-bagger fund as she spread rumors and misinformation about the Healthcare Reform Act. And Thomas' refusal to recuse himself from deliberating about the Healthcare Reform Act.

    October 14, 2011 05:05 pm at 5:05 pm |
  5. Chaz

    @ Julia Craft
    While I don't support – let alone care – about the Perry's, I have to wonder what they have to do with this article? There is no mention of them anywhere. At least stay on the subject you're posting about. Thanks.

    October 14, 2011 05:12 pm at 5:12 pm |
  6. Me

    They want to know about Kagan's doings but Bush and Cheney get a pass? Way to look out for our country, there.

    October 14, 2011 05:13 pm at 5:13 pm |
  7. ThinkAgain

    Clarence Thomas should recuse himself from any case coming before the Supreme Court in regard to health care reform because his wife made over $400,000 in unreported income lobbying for the defeat of this law.

    October 14, 2011 05:18 pm at 5:18 pm |
  8. Ed DFWTX

    This is nothing more than dirty GOP politiacal games and an attempt to draw the attention away from Clarence Thomas and his right wing nut job wife taking large bribes from extreme right wingers groups. Seems like Thomas can get away with just about anything including sexual harrassment, accepting bribes and obstruction of justice as long as he supports his GOP buddies on Capitol Hill.

    October 14, 2011 05:22 pm at 5:22 pm |
  9. Liesofthefoxists/fascists

    Chaz – you must think you're something special to be telling people how or where to respond – tee-bagger much?

    October 14, 2011 05:35 pm at 5:35 pm |
  10. jerry

    opps...looks like where there is smoke there is fire... Kagan should recuse herself on this one...my bet is she will not. This sucks because there is a lot at stake here for Americans. Situations like this really undermine Americans faith in their government.

    October 14, 2011 05:37 pm at 5:37 pm |
  11. Sniffit

    Kagan: absolutely ZERO financial stake in whether the law is upheld or not.

    Thomas: CLEAR financial stake in whether the law is upheld or not.

    MSM: reports only about conservative groups trying to fabricate a toe-hold for demands that Kagan recuse herself....all while ignoring Thomas' much more substantive personal interest in the outcome of the case.

    October 14, 2011 05:38 pm at 5:38 pm |
  12. Chaz

    I just wanted to know what the Perry's had to do with this article. That doesn't make me a tee-bagger. Although I guess you calling me a tee-bagger makes you feel like your someone special too, right?

    October 14, 2011 05:46 pm at 5:46 pm |
  13. Bay

    Scum bag lberal lawyers have to protect their own. If it was Clarence Thomas they would passed through that request without a second look.

    October 14, 2011 05:47 pm at 5:47 pm |
  14. The Greedy Old PIgs have declared class war on US!

    Thomas is definitely the most newsworthy story to cover. Which is why our so-called "liberal media" will avoid it like the plague.


    October 14, 2011 06:21 pm at 6:21 pm |
  15. Lizzie

    Liesofthefoxists/fascists and Julia Craft, goody goody you know how to copy and paste. However you might want to read the above story FIRST and then paste, or are you not able to read and comprehend.

    October 14, 2011 07:08 pm at 7:08 pm |
  16. a little sad

    @ Chaz & Lies of the left

    Julia's answer was perfect for the article on Perry's wife – could she have been victim of "the two window open simultaneously" symptom?

    Either way, not to TELL you what to do, but I would vote for "lighten up".

    October 14, 2011 07:11 pm at 7:11 pm |
  17. Al-NY,NY

    GOP shill groups desperate to make headlines against Obama. Clarence Thomas and Scalia get a pass though. What a surprise

    October 14, 2011 07:18 pm at 7:18 pm |
  18. CaliforniaBC

    If these organizations really want to do their jobs then start looking at Clarence Thomas and his dealings with the Koch Brothers.

    October 14, 2011 07:20 pm at 7:20 pm |