In a recent post, I took issue with Gabe Roth's argument that Justice Kagan ought to have recused herself from Affordable Care Act cases such as NFIB v. Sebelius because her "experience in the Obama administration constituted 'significant involvement'" in those cases.
On Friday, over at Bench Memos, Ed Whelan agreed with me that Roth's argument is groundless. Even so, Ed contends that Justice Kagan violated a federal statute--28 U.S.C. § 455(b)(3)--when she did not recuse in NFIB v. Sebelius. In so doing, Ed revives an argument that he and others raised back in 2011. It didn't gain any traction then, and it shouldn't now, either, because Ed fails to point to any evidence that Justice Kagan violated section 455(b)(3). [Disclosure: I worked with Justice Kagan at the Department of Justice during the relevant period; but everything in this post is based upon public records, and I do not have any further information about her involvement, or lack thereof, in the ACA litigation, except for the fact that I never saw or heard evidence of her involvement in those cases.]
Section 455(b)(3) provides that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding . . . [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy." Section 455(d)(1), in turn, provides that for purposes of section 455, the "meaning" of "proceeding" includes "pretrial, trial, appellate review, or other stages of litigation."
Justice Kagan obviously has not participated as a counsel or a material witness in any ACA litigation, nor does Ed suggest that she ever, in her capacity as SG, "expressed an opinion concerning the merits of [a] particular case in controversy." So the only remaining question is whether Kagan, as SG, participated as an "adviser . . . concerning any ACA proceeding" that later came before the Court.
Ed writes that "[i]n her capacity as solicitor general, Elena Kagan was personally involved, even if only to a limited degree, in advising how to defend against challenges to Obamacare"; and in support of this claim, Ed links to a series of emails that have been released. But nothing in those emails offers any evidence to support the notion that SG Kagan participated as an adviser in any ACA litigation.
First, in January 2010, two and a half months before Congress even enacted the ACA, Deputy SG Neal Katyal e-mailed Kagan to ask her which Deputy SG should be involved in any future discussions within the government about possible litigation involving the health care law--himself, or Ed Kneedler, or both. Kagan responded that Katyal "should do it." This delegation of responsibility to one of her Deputies for purposes of possible future litigation obviously was not the provision of legal advice on any proceeding that was later before the Court--indeed, no such proceedings existed, because ACA lawsuits had not yet been filed against then-non-enacted legislation.
Also in January, Katyal wrote to a lawyer in the Associate Attorney General’s office that “we will bring Elena in as needed.” But the emails do not offer any evidence that Kagan was ever "brought in," let alone that she provided any advice when proceedings challenging the ACA were eventually initiated in late March.
Ed Whelan also cites another email of Neal Katyal's, on March 21, 2010, in which Katyal suggested that Kagan attend an interagency meeting the next day (March 22) to discuss the prospects of litigation. That meeting, too, was convened before the law was enacted and before constitutional challenges ("proceedings") commenced--both of which happened on the 23d. There's no evidence that Kagan attended the March 22 meeting, let alone that she offered any advice on the litigation once it was initiated.
To the contrary, in another internal DOJ email written on May 17, one week after Kagan had been nominated to the Court, Katyal wrote that Kagan “has never been involved in any of [the ACA litigation]. I’ve run it for the Office, and have never discussed the issues with her one bit." This is hardly surprising, because Kagan had already been informed by White House Counsel that the President was considering her for appointment to the Court (see page 199), and she evidently had decided that she would recuse from the litigation challenging the ACA so that the Court would have a full complement of Justices to review any such case in the event she were nominated and confirmed. In those circumstances, it would have made no sense for her to advise on any ACA litigation in her capacity as SG.
And that's it. Ed Whelan doesn't offer any other evidence, and thus he provides no basis for concluding that SG Kagan ever participated as an adviser concerning any proceeding that later came before the Court when she was a Justice. Justice Kagan told the Senate (see page 68) that she would consult and abide by the prescriptions of section 455, among other "relevant prescriptions" for recusal. There's no reason to think she violated section 455(b)(3) when she sat on NFIB v. Sebelius and other cases challenging the ACA.
UPDATE: Ed Whelan has replied here. He assumes that my argument depends upon the notion that section 455(b)(3) cannot be triggered by actions of a government lawyer undertaken before litigation is filed: What if Elena Kagan had, he surmises, "drafted a template summary-judgment motion to be used in all the Obamacare cases," but had done so only before any such cases were actually filed?
I honestly don't know enough about section 455 to say for sure whether such pre-litigation drafting would constitute acting as an "adviser" on proceedings that did not exist at the time, or whether the statute only applies to advice on existing litigation. I am fairly confident, however, that Justice Kagan would have recused from NFIB v. Sebelius if she had done any such thing as SG, regardless of whether section 455 required it. The principal point of my post is that Ed points to no evidence that Kagan did any such thing--that she provided any advice at all on existing or foreseeable litigation--while she was SG.
To this, Ed's response seems to be that Kagan should have advised on the litigation as SG, even if she did not do so: "Kagan’s role as SG was to do her job, not to act to ensure that [in my words] 'the Court would have a full complement of Justices.'”
I don't think it was at all improper for Kagan not to work on the ACA litigation at DOJ once she knew there was a serious possibility she'd be the ninth Justice--particularly if she concluded that her vote would only make a difference if the Court were otherwise split 4-4, and that there was every reason in the world for the Court to avoid such a 4-4 split on a momentous issue of great public importance and a major, complex piece of federal legislation, especially where there might be a circuit split (which was in fact what happened). (My recollection from her testimony is that, contrary to Ed's suggestion, this was not the only matter within DOJ that she stopped working on at the time--but it certainly was one as to which the prospect of a huge, long-term mess of uncertainty in the event of a 4-4 split was easily foreseeable.)
But that's not the real point: Even if Ed thinks Justice Kagan ought to have offered legal advice on the cases as SG, in fact she did not do so. Therefore she did not violate section 455 by participating in the NFIB case as a Justice.