49 House Members Demand Probe of Kagan, Obamacare

Almost 50 House members want the House Judiciary Committee to investigate Supreme Court Justice Elena Kagan's involvement in formulating President Barack Obama’s healthcare law while she was his solicitor general. Rep. John Fleming, R-La., is leading the effort, alleging that evidence shows Kagan should recuse herself from court cases involving Obamacare, according to CNSNews.com.

The 49 lawmakers sent a letter last week to House Judiciary Chairman Lamar Smith, R-Texas, and Ranking Member John Conyers, D-Mich., citing documents the Justice Department released as the result of a Freedom of Information Act from CNSNews.com in May 2010, before Kagan’s confirmation hearing. That request is the subject of a federal court case involving the Media Research Center, which is CNSNews.com's parent organization, and the U.S. Justice Department, which is asking a federal judge to block any further release of documents sought under the FOIA request, according to CNSNews.

"We respectfully call on the House Judiciary Committee to promptly investigate the extent to which U.S. Supreme Court Justice Elena Kagan was involved in preparing a legal defense of the Patient Protection and Affordable Care Act [PPACA] during her tenure as Solicitor General," the lawmakers wrote.

"Contradictory to her 2010 confirmation testimony before the Senate Judiciary Committee, recently released Department of Justice documents indicate that Justice Kagan actively participated with her Obama administration colleagues in formulating a defense of PPACA," the letter says.

"Regrettably the Justice Department has been uncooperative to date with repeated FOIA requests that seek the full body of relevant emails from the Office of the Solicitor General that would reveal the scope of Kagan's involvement in PPACA defense activities.”

The House members’ letter notes that federal law prohibits a Supreme Court justice from participating in a case in which the judge’s impartiality might be questioned or where a justice gave advice on the issue at hand while serving in government office.

"As you know," they wrote, "Section 455 of Title 28 of the United States Code establishes unambiguous conditions in which federal judges must recuse themselves from proceedings in which their impartiality might reasonably be questioned," the lawmakers wrote. "According to the law, a justice should recuse themselves in cases 'where he has served in governmental employment and in such capacity served as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.'

"Even from the limited number of DOJ emails released to date through a Freedom of Information Act lawsuit, it is evident that Justice Kagan was involved in PPACA defense activities to a degree that warrants her disqualifications from related proceedings as specified by Section 455," the lawmakers said.

Kagan was solicitor general when states began filing suits challenging Obamacare.