Can Justice Kagan be Impartial on Obamacare?

Over the next couple of weeks, two things could happen that will affect the future of Obamacare. It has been widely reported that the Justices of the Supreme Court will meet privately on November 10th to decide if they will hear the case against President Obama’s health care reform. Twenty-six states have challenged the constitutionality of Obamacare’s individual mandate, and even the Obama Administration has asked the High Court to rule. But, a critical deadline precedes the November 10th meeting.

The House Judiciary Committee has given the Justice Department until this Friday, November 4th, to produce documents and witnesses that are necessary to shed light on whether Supreme Court Justice Elena Kagan is qualified to render an impartial judgment on Obamacare. Justice Kagan was the Obama Administration’s Solicitor General and she may have had a role in preparing a legal defense for Obamacare before taking her seat on the Supreme Court. In June, I led a group of 49 House members in requesting a Judiciary Committee investigation. A limited number of Department of Justice emails, which were released through a Freedom of Information Act (FOIA) lawsuit, have already raised serious questions about whether Justice Kagan has an inherent conflict of interest related to the President’s health care reform, should it could come before the Supreme Court.

As a result of our letter, Judiciary Committee Chairman, Representative Lamar Smith, wrote to Attorney General Eric Holder on July 6th. He asked the Justice Department to turn over any documents related to the health care legislation that also mentioned or involved then-Solicitor General Kagan. It took almost four months for the Attorney General’s office to reply, which they finally did on October 27th. In that letter an Assistant Attorney General characterized the request for information as “unseemly.” Without offering any legal basis, the Justice Department refused to cooperate. Chairman Smith rejected this stonewalling and wrote back, giving the Justice Department until Friday, November 4th to produce the documents and make two former colleagues of Solicitor Kagan available to be interviewed.

Before the Supreme Court Justices meet to discuss whether to hear the case against Obamacare, it is imperative that the American people know whether one of those Justices had any role in helping to prepare the Administration’s legal defense for Obamacare. If Justice Kagan was offering guidance to the Administration on how to withstand legal challenges to Obamacare, then she cannot be impartial and should recuse herself from any of the Supreme Court’s official decision-making about this critical issue.


Congressman John Fleming, M.D., represents Louisiana’s 4th District. He is Co-Chair of the Congressional Values Action Team, Chairman of the Natural Resources Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs, and is a member of the House Armed Services Committee. He is a physician and small business owner.