- The Washington Times - Thursday, December 15, 2011

The attorney general’s belated release of various emails has raised the question of whether former Solicitor General Elena Kagan should disqualify herself from the case that will decide the constitutionality of Obamacare. Many people think she has already made up her mind, and for good reason. First, a little background.

In a series of 5-4 opinions, the court has made clear Congress can regulate a “commercial act” that “affects commerce” among the states. Growing wheat is a commercial act (so Congress can regulate that), but deciding not to grow wheat is not a commercial act, even though that decision (like the decision not to buy vegetables) affects commerce. Similarly, merely possessing an unloaded gun near a school is not a commercial act so Congress cannot regulate it using its commerce power. Not buying health insurance certainly affects commerce, but it is not a commercial act. It is not an act at all.

During her confirmation hearings, Sen. Tom Coburn, Oklahoma Republican, asked Ms. Kagan whether Congress could require us to eat three vegetables and three fruits every day. That would make us healthier and also would affect commerce and medical costs, but it is not a commercial act. Ms. Kagan could have said that she would not respond to that question because it is the pivotal issue in Obamacare - the “individual mandate” that requires people to buy health insurance. Or she could have said that precedents say that Congress cannot regulate something that affects commerce unless it is a commercial act. Instead, she said, “I think it would be wrong to strike down” such laws. In effect, she decided the individual mandate issue.

At her hearings, she said she would recuse herself from any case in which she “officially formally approved something” or “played a substantial role.” But that is not the test that the federal statute imposes. It requires Justice Kagan to disqualify herself if she, as a federal employee (solicitor general) “participated as counsel” or as an “adviser,” or she “expressed an opinion concerning the merits of the particular case in controversy.”

The government (after much prodding) has released emails that raise serious questions whether she, in fact, expressed any opinion regarding the constitutionality of Obamacare. We know that her deputy solicitor general emailed her about the issue, and she replied that she wanted to talk over the phone (with no paper trail). We know that emails also showed that her deputy solicitor general at that time believed Ms. Kagan “definitely” wanted her office involved in the administration’s defense against those legal challenges. The deputy solicitor general was the public face involved in the defense while she stayed in the background, but that does not excuse complying with the statute.

Months earlier, in an email chain on Jan. 8, 2010, the deputy solicitor general relayed to Associate Attorney General Thomas Perrelli that “Elena [Kagan] would definitely like OSG [Office of the Solicitor General] to be involved in this set of issues [the constitutional challenge to ObamaCare]. I will … bring in Elena as needed.” After the first strategy meeting, the deputy solicitor general emphasized getting the solicitor general’s office “heavily involved even in the dct [District Court].” This unusual involvement (the solicitor general normally handles appeals) suggests that she wanted to shape the litigation strategy to fashion the best defense of the individual mandate.

Later, in an email chain on March 21, 2010, Mr. Perrelli sent a message to various Justice Department lawyers, including the deputy solicitor general, about a meeting the next day to discuss the constitutional challenge to Obamacare. Ms. Kagan was included in that mailing, too, which suggests she was involved in planning for the upcoming litigation (“participated as counsel”).

The Obama administration has delayed turning over some emails, refused to turn over other material, redacted some material, and gone to court to prevent disclosure. If the White House has something to hide, it would act exactly the way it has been acting. If it has nothing to hide, it should turn over all materials requested.

Given this evidence, it would hardly be surprising if Justice Kagan had offered her opinion that the individual mandate is constitutional. After all, she thinks Congress can make us buy and eat vegetables. What is surprising is that she refuses to disqualify herself. Even if she did not give her opinion, the email chains suggest that she was kept in the loop and “participated” as an adviser, even if she kept her opinions to herself. Justice Kagan should recuse herself to avoid the appearance of impropriety.

Ronald D. Rotunda, co-author of “Legal Ethics,” a treatise on judicial and lawyer’s disqualification published by the American Bar Association and West Publishing Co., is a professor at Chapman University Law School.