Terry Jeffrey

Considering the debate around President Barack Obama's health care plan and the lawsuits filed against it, then-Solicitor General Elena Kagan's written answers to some of the 13 written questions relating to Obamacare that Senate Judiciary Committee Republicans submitted to her during her Supreme Court confirmation process were remarkably simple and straightforward.

"No," she said.

That was how she answered question No. 2, which inquired if she had ever been asked her opinion about the merits or underlying legal issues in Florida's lawsuit against Obamacare.

That was also the way she answered question No. 3, which asked: "Have you ever been asked your opinion regarding any other legal issues that may arise from Pub. L. No. 111-148?" -- aka Obamacare.

Thus, during the time Obamacare was debated, enacted and targeted by lawsuits, no one in Obama's administration bothered to ask his solicitor general about any legal issue that might arise from it.

But two months before Kagan told the Judiciary Committee she had never been asked her opinion regarding any legal issue that might arise from Obamacare, her own top deputy sent her a memo telling her that she had "substantially participated" in her office's handling of Golden Gate Restaurant Association v. San Francisco.

The memo is among documents the Justice Department released in response to Freedom of Information Act lawsuits filed by the Media Research Center (the parent organization of CNSNews.com) and Judicial Watch.

The Golden Gate case, Kagan's own office would argue to the Supreme Court, had become inseparable from Obamacare.

In 2006, San Francisco enacted a municipal universal health care plan. The Golden Gate Restaurant Association (representing local restaurants) sued, arguing that San Francisco's law was pre-empted by the federal Employee Retirement Income Security Act, which regulates employee benefits plans. A U.S. district court agreed, but the U.S. Court of Appeals for the 9th Circuit did not.

The restaurant association appealed to the Supreme Court. On Oct. 5, 2009, as the national debate over Obamacare heated up, the court asked Solicitor General Kagan to submit a brief on whether it should take up the case.

Deputy Solicitor General Edwin S. Kneedler handled the case for Kagan's office.

On March 23, 2010, Obama signed the Patient Protection and Affordable Care Act.

Ten days later, Kagan sent Kneedler an email about the brief in the Golden Gate case.

"Ed -- could you give me a time of arrival on (name redacted) and (name redacted)?" Kagan said.

The redacted names apparently belonged to attorneys working under Kneedler's supervision.


Terry Jeffrey

Terence P. Jeffrey is the editor-in-chief of CNSNews

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