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Wednesday, December 14, 2011
CNS' Jeffrey Whiffs Again In Kagan Recusal Effort
Topic: editor in chief Terry Jeffrey is getting increasingly desperate in his efforts to get Supreme Court Justice Elena Kagan to recuse from deciding the constitutionality of President Obama's health care reform plan.

Jeffrey wrote in a Dec. 9 article:

Internal Justice Department email communications made just days before the House of Representatives passed the Patient Protection and Affordable Care Act show that then-Solicitor General Elena Kagan was brought into the loop as DOJ began preparing to respond to an anticipated legal complaint that Mark Levin and the Landmark Legal Foundation were planning to file against the act if the House used a procedural rule to “deem” the bill passed even if members never directly voted on it.

Levin's complaint involved a procedural maneuver used to pass the bill -- which the case before the Suprement Court will not address, given that the "deem and pass" procedure was never actually used -- and did not address the content of the legislation.

Strike one.

Jeffrey brought up another irrelevant issue in a Dec. 13 article, trying tomake a big deal about how Neal Kaytal, Kagan's deputy when she was solicitor general, the position she held before being appointed to the Supreme Court, "had written her a memo informing her that she had 'substantially participated' in Golden Gate Restaurant Association v. San Francisco—a case that Kagan’s own office tied to Obamacare." Jeffrey continued:

On May 28, 2010, 15 days after Katyal sent Kagan this memo informing her that she had “substantially participated” in the Golden Gate case--and a month before Kagan’s Supreme Court confirmation hearings started--Kagan’s office submitted a 26-page brief to the Supreme Court in the case. The brief cited PPACA by name 12 times and referred to it more generally as “the federal legislation” or “the new federal legislation” an additional 6 times.

Additionally, the brief cited the Health Care and Education Reconciliation Act (HCERA), the reconciliation bill enacted with PPACA, 7 times.

Sounds serious -- except it's not. As Jeffrey eventually concedes, the brief Kagan's office issued in Golden Gate Restaurant Association case argued that it "should not be taken up by the Supreme Court at that time because the full federal regulatory framework in which that question could be properly answered could only be seen once all the new regulations needed under Obamacare had been written by the federal agencies responsible for them."

Again, Jeffrey provides no evidence that Kagan offered an opinion on the constitutionality of health care reform. Far from it -- the brief Jeffrey is citing argues that the case not be take up until federal law is settled as health care reform is implemented.

Strike two.

Jeffrey then condenses that article in his Dec. 14 column, complete with suggestion that Kagan's participation in this case means she lied to Congress when she said she hadn't ruled on legal issues regarding Obamacare.  Again, advocating that the Golden Gate case be put on hold until federal issues are resolved is not an opinion about the legal merits of Obamacare.

Strike three!

Posted by Terry K. at 2:44 PM EST

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