Saturday, April 2, 2011

Will Rogers

"All I know is just what I read in the papers, and that's an alibi for my ignorance."
Will Rogers

"Too many people spend money they haven’t earned, to buy things they don’t want, to impress people they don’t like."
Will Rogers

"Diplomacy is the art of saying ‘nice doggie’ until you can find a rock."
Will Rogers

"Live in such a way that you would not be ashamed to sell your parrot to the town gossip."
Will Rogers

"There are three kinds of men. The ones that learn by readin’. The few who learn by observation. The rest of them have to pee on the electric fence for themselves."
Will Rogers

"When you find yourself in a hole, quit digging."
Will Rogers

"Don't let yesterday take up too much of today"
Will Rogers

"Common sense ain't common."
Will Rogers

"Half our life is spent trying to find something to do with the time we have rushed through life trying to save."
Will Rogers

"Do the best you can, and don't take life too serious."
Will Rogers

"A fool and his money are soon elected."
Will Rogers

"The short memories of the American voters is what keeps our politicians in office."
Will Rogers

"The minute you read something that you can't understand, you can almost be sure that it was drawn up by a lawyer. "
Will Rogers

"Rumor travels faster, but it don't stay put as long as truth. "
Will Rogers

"The road to success is dotted with many tempting parking spaces."
Will Rogers

"There is no trick to being a humorist when you have the whole government working for you."
Will Rogers

"The difference between death and taxes is death doesn’t get worse every time Congress meets."
Will Rogers

"Buy land. They ain't making any more of the stuff."
Will Rogers

"Never miss a good opportunity to shut up."
Will Rogers

"The income tax has made more liars out of the American people than golf has."
Will Rogers

"I don't make jokes. I just watch the government and report the facts."
Will Rogers

"The problem ain't what people know. It's what people know that ain't so that's the problem."
Will Rogers

"Lord, the money we do spend on Government and it's not one bit better than the government we got for one-third the money twenty years ago."
Will Rogers

"The trouble with practical jokes is that very often they get elected."
Will Rogers

"The quickest way to double your money is to fold it in half and put it in your back pocket."
Will Rogers

"Be thankful we're not getting all the government we're paying for."
Will Rogers

"You know horses are smarter than people. You never heard of a horse going broke betting on people."
Will Rogers

"Most men are about as happy as they make up their minds to be."
Will Rogers

"If you want to be successful, it's just this simple. Know what you are doing. Love what you are doing. And believe in what you are doing."
Will Rogers

"It's almost been worth this depression to find out how little our big men know."
Will Rogers

"Plans get you into things but you've got to work your way out."
Will Rogers

"There’s only one thing that can kill the movies, and that’s education."
Will Rogers

"Things ain't what they used to be and probably never was."
Will Rogers



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I met a traveller from an antique land
Who said: "Two vast and trunkless legs of stone
Stand in the desert. Near them on the sand,
Half sunk, a shattered visage lies, whose frown
And wrinkled lip and sneer of cold command
Tell that its sculptor well those passions read
Which yet survive, stamped on these lifeless things,
The hand that mocked them and the heart that fed.
And on the pedestal these words appear:
`My name is Ozymandias, King of Kings:

Look on my works, ye mighty, and despair!'
Nothing beside remains. Round the decay
Of that colossal wreck, boundless and bare,
The lone and level sands stretch far away".

Mot (Semitic god)

Mot (Semitic god)

From Wikipedia, the free encyclopedia

In Ugaritic Mot 'Death' (spelled mt) is personified as a god of death. The word is cognate with forms meaning 'death' in other Semitic and Afro-Asiatic languages: with Arabic موت mawt; with Hebrew מות (mot or mavet; ancient hebrew moth or maweth); with Maltese mewt; with Syriac mautā; with Ge'ez mot; with Canaanite, Egyptian Aramaic, Nabataean, and Palmyrene מות (mwt); with Jewish Aramaic, Christian Palestinian Aramaic, and Samaritan מותא (mwt’); with Mandaean muta; with Akkadian mūtu; with Hausa mutuwa; and with Angas mut. The name of the god, in its abstract meaning of death, survives use in the English language in the game of chess, "mate".

Mot 'Death', son of 'El, according to instructions given by the god Hadad (Ba‘al) to his messengers, lives in a city named hmry ('Mirey'), a pit is his throne, and Filth is the land of her heritage. But Ba‘al warns them:
that you not come near to divine Death,
lest he made you like a lamb in his mouth,
(and) you both be carried away like a kid in the breach of his windpipe.
Hadad seems to be urging that Mot come to his feast and submit himself to Hadad.
Death sends back a message that his appetite is that of lions in the wilderness, like the longing of dolphins in the sea and he threatens to devour Ba‘al himself. In a subsequent passage Death seemingly makes good his threat, or at least is deceived into believing he has slain Ba‘al. Numerous gaps in the text make this portion of the tale obscure. Then Ba‘al/Hadad's sister, the warrior goddess ‘Anat, comes upon Mot, seizes him, splits him with a blade, winnows him in a sieve, burns him in a fire, grinds him between mill-stones and throws what remains on the field for the birds to devour.

After seven years Death returns, seeking vengeance for the splitting, burning, grinding, and winnowing and demanding one of Ba‘al's brothers to feed upon. A gap in the text is followed by Mot complaining that Ba‘al has given Mot his own brothers to eat, the sons of his mother to consume. A single combat between the two breaks out until Shapsh 'Sun' upbraids Mot, informing him that his own father 'El will turn against him and overturn his throne if he continues. Mot concedes and the conflict ends.
In Sanchuniathon also Death is son of 'El and counted as a god, as the text says in speaking of 'El/Cronus:
... and not long afterwards he consecrated after his death another of his sons, called Muth, whom he had by Rhea; this (Muth) the Phoenicians esteem the same as Thanatos ['Death'] and Pluto.
Earlier in a philosophical creation myth Sanchuniathon has referred to great wind which merged with its parents and that connection was called Eros 'Desire':
From its connection Mot was produced, which some say is mud, and others a putrescence of watery compound; and out of this came every germ of creation, and the generation of the universe. So there were certain animals which had no sensation, and out of them grew intelligent animals, and were called "Zophasemin," that is "observers of heaven"; and they were formed like the shape of an egg. Also Mot burst forth into light, and sun, and moon, and stars, and the great constellations.
The language here is confusing, a bad summary and possibly corrupt, and the form Mot here is not the same as Muth which appears later. But it may be that the full and coherent account would have made clear that muddy and putrescent Death is the source of life.
According to H.H. Ben-Sasson's A History of the Jewish People, 1976, page 11-12: "From the Ugaritic evidence ... Other central deities [of the Canaanite pantheon] were ... Moth, the deity of death and the nether world" (Jeremiah 9:21; and Habakkuk 2:5).

[] External links

Alex Irvine- John Winchester's Journal [Supernatural]

Thursday, March 31, 2011

Feds urged to up biofuels support

Biofuels from Switchgrass: Greener Energy Pastures

Biofuels from Switchgrass: Greener Energy Pastures

Click here to download or view this brochure in PDF format (191 k)

The grass stretched as far as the eye could see, and hundreds more miles beyond that. An ocean of grass—deep enough to swallow a horse and rider—swaying and singing in the steady wind of the Great Plains. § The American prairie—tens of millions of acres— once looked like this. But that was centuries ago, before the coming of the white man, the railroad, and the steel plow. Today, corn and beans hold sway, and the remnants of America's tallgrass prairie are confined mostly to parks and preserves. § Now, though, in research plots and laboratories in the Plains states and even in the Deep South the seeds of change are germinating. The tall, native grasses of the prairie, so vital to our land's ecological past, may prove equally vital to its economic future. Such grasses once fed millions of bison. Soon, grown as energy crops, they may help fuel millions of cars and trucks, spin power turbines, and supply chemicals to American industries.
Switchgrass Test plots of switchgrass at Auburn University have produced up to 15 tons of dry biomass per acre, and five- year yields average 11.5 tons—enough to make 1,150 gallons of ethanol per acre each year.
The U.S. Department of Energy (DOE) believes that biofuels—made from crops of native grasses, such as fast- growing switchgrass—could reduce the nation's dependence on foreign oil, curb emissions of the "greenhouse gas" carbon dioxide, and strengthen America's farm economy. The Biofuels Feedstock Development Program (BFDP) at DOE's Oak Ridge

National Laboratory (ORNL), has assembled a team of scientists ranging from economists and energy analysts to plant physiologists and geneticists to lay the groundwork for this new source of renewable energy. Included are researchers at universities, other national laboratories, and agricultural research stations around the nation. Their goal, according to ORNL physiologist Sandy McLaughlin, who leads the switchgrass research effort, is nothing short of building the foundation for a biofuels industry that will make and market ethanol and other biofuels from switchgrass and at prices competitive with fossil fuels such as gasoline and diesel.

Not the grass in your backyard

First, a distinction: switchgrass and your suburban lawn grasses—bluegrass and zoysia grass— are about as similar as a shopping-mall ficus and an old-growth redwood. Switchgrass is big and it's tough—after a good growing season, it can stand 10 feet high, with stems as thick and strong as hardwood pencils.

But what makes switchgrass bad for barefoot lawns makes it ideal for energy crops: It grows fast, capturing lots of solar energy and turning it into lots of chemical energy— cellulose—that can be liquified, gasified, or burned directly. It also reaches deep into the soil for water, and uses the water it finds very efficiently.

And because it spent millions of years evolving to thrive in climates and growing conditions spanning much of the nation, switchgrass is remarkably adaptable.

Now, to make switchgrass even more promising, researchers across the country are working to boost switchgrass hardiness and yields, adapt varieties to a wide range of growing conditions, and reduce the need for nitrogen and other chemical fertilizers. By "fingerprinting" the DNA and physiological characteristics of numerous varieties, the researchers are steadily identifying and breeding varieties of switchgrass that show great promise for the future.
Baler Bales and trees
Switchgrass can be cut and baled with standard farming equipment.

Yield of dreams

In the hard, shallow soil of southern Alabama, Dave Bransby is turning cotton fields into swatches of grassland. Some Alabama farmers joke that there's no soil in Alabama to farm—two centuries of King Cotton and steady erosion haven't left much behind. Yet Bransby, a forage scientist at Auburn University, has found a crop that thrives there: Among the 19 research sites in the Eastern and Central United States raising switchgrass for the BFDP studies, Bransby's site holds the one-year record at 15 tons per acre. Those are dry tons weighed after all the moisture's been baked out. Convert that into ethanol, an alcohol that can fuel vehicles, and it equals about 1,500 gallons per acre. Bransby's 6-year average, 11.5 tons a year, translates into about 11,500 gallons of ethanol per acre. An added bonus is the electricity that can be produced from the leftover portions of the crop that won't convert to ethanol.
Men in field of switchgrass Many farmers are already experienced at raising switchgrass for forage or to protect soil from erosion. Besides showing great promise for energy production, switchgrass also restores vital organic nutrients to farmed-out soils.
Many farmers already grow switchgrass, either as forage for livestock or as a ground cover, to control erosion. Cultivating switchgrass as an energy crop instead would require only minor changes in how it's managed and when it's harvested. Switchgrass can be cut and baled with conventional mowers and balers. And it's a hardy, adaptable perennial, so once it's established in a field, it can be harvested as a cash crop, either annually or semiannually, for 10 years or more before replanting is needed. And because it has multiple uses—as an ethanol feedstock, as forage, as ground cover—a farmer who plants switchgrass can be confident knowing that a switchgrass crop will be put to good use.

Farmers working in production mode might not match Bransby's carefully tended research plots, but if the future brings rises in oil prices—or if environmental taxes are eventually imposed on fossil fuels—energy from switchgrass could prove economically competitive with petroleum and coal, making biomass crops attractive to American farmers. And with recent advances in the technology of gasification, switchgrass could yield a variety of useful fuels—synthetic gasoline and diesel fuel, methanol, methane gas, even hydrogen—as well as chemical by-products useful for making fertilizers, solvents, and plastics.

Strong environmental roots

Annual cultivation of many agricultural crops depletes the soil's organic matter, steadily reducing fertility. But switchgrass adds organic matter—the plants extend nearly as far below ground as above. And with its network of stems and roots, switchgrass holds onto soil even in winter to prevent erosion.

Besides helping slow runoff and anchor soil, switchgrass can also filter runoff from fields planted with traditional row crops. Buffer strips of switchgrass, planted along streambanks and around wetlands, could remove soil particles, pesticides, and fertilizer residues from surface water before it reaches groundwater or streams—and could also provide energy.

And because switchgrass removes carbon dioxide (CO2 ) from the air as it grows, it has the potential to slow the buildup of this greenhouse gas in Earth's atmosphere. Unlike fossil fuels, which simply release more and more of the CO2 that's been in geologic storage for millions of years, energy crops of switchgrass "recycle" CO2 over and over again, with each year's cycle of growth and use.

The road ahead

One reason BFDP researchers are confident that switchgrass can become an important feedstock for ethanol production is the groundwork that's already been laid by corn growers. U.S. ethanol production from corn currently totals nearly 2 billion gallons a year. Some of this ethanol is blended with gasoline to make gasohol; some is further refined to make gasoline octane boosters; and some is burned, either in pure ("neat") form or mixed with a small percentage of gasoline, in fleets of research and demonstration vehicles.

Looking down the road, McLaughlin believes switchgrass offers important advantages as an energy crop. "Producing ethanol from corn requires almost as much energy to produce as it yields," he explains, "while ethanol from switchgrass can produce about five times more energy than you put in. When you factor in the energy required to make tractors, transport farm equipment, plant and harvest, and so on, the net energy output of switchgrass is about 20 times better than corn's." Switchgrass also does a far better job of protecting soil, virtually eliminating erosion. And it removes considerably more CO2 from the air, packing it away in soils and roots.
Bird in switchgrass Switchgrass offers excellent habitat for a wide variety of birds and small mammals.

Back to the future

At the turn of the last century, America's transportation system was fueled by biomass: 30 million horses and mules, give or take a few million, pulled buggies, hauled wagons, dragged plows. According to Ken Vogel, a U.S. Department of Agriculture forage geneticist helping develop and test switchgrass for the BFDP, replacing animal power with machine power freed up 80 million acres of U.S. land—land that had been used to grow grass and other feed for these millions of animals. Now, at the dawn of the next century, the wheel could begin to turn full circle. On millions of acres of farm land not needed for food crops, fast-growing energy crops of switchgrass—harvested and converted efficiently to clean-burning, affordable ethanol, methanol, or diesel—could once again supply vast amounts of horsepower.

In short, biomass could bring back a 21st-century version of the prairie. And along with the prairie, it could bring a new crop to America's farms, a boost to U.S. energy independence, and brighter prospects for a clean, sustainable future. According to BFDP and its research partners across the country, that's a future worth cultivating.

For more information, contact:
Bioenergy Feedstock Development Program

Oak Ridge National Laboratory
P.O. Box 2008
Oak Ridge, TN 37831-6422
865-576-8143 (fax)
DOE logoProduced for DOE's Office of Transportation Technologies and the Office of Power Technologies within the Office of Energy Efficiency and Renewable Energy

Grass Makes Better Ethanol than Corn Does

News | Energy & Sustainability

Grass Makes Better Ethanol than Corn Does

Midwestern farms prove switchgrass could be the right crop for producing ethanol to replace gasoline

GRASS GAS: Turning fields of switchgrass like this one in northeastern Nebraska into ethanol produces 540 percent more energy than the amount consumed growing the native perennial. Image: COURTESY OF USDA-ARS
Farmers in Nebraska and the Dakotas brought the U.S. closer to becoming a biofuel economy, planting huge tracts of land for the first time with switchgrass—a native North American perennial grass (Panicum virgatum) that often grows on the borders of cropland naturally—and proving that it can deliver more than five times more energy than it takes to grow it.

Working with the U.S. Department of Agriculture (USDA), the farmers tracked the seed used to establish the plant, fertilizer used to boost its growth, fuel used to farm it, overall rainfall and the amount of grass ultimately harvested for five years on fields ranging from seven to 23 acres in size (three to nine hectares).

Once established, the fields yielded from 5.2 to 11.1 metric tons of grass bales per hectare, depending on rainfall, says USDA plant scientist Ken Vogel. "It fluctuates with the timing of the precipitation,'' he says. "Switchgrass needs most of its moisture in spring and midsummer. If you get fall rains, it's not going to do that year's crops much good."
But yields from a grass that only needs to be planted once would deliver an average of 13.1 megajoules of energy as ethanol for every megajoule of petroleum consumed—in the form of nitrogen fertilizers or diesel for tractors—growing them. "It's a prediction because right now there are no biorefineries built that handle cellulosic material" like that which switchgrass provides, Vogel notes. "We're pretty confident the ethanol yield is pretty close." This means that switchgrass ethanol delivers 540 percent of the energy used to produce it, compared with just roughly 25 percent more energy returned by corn-based ethanol according to the most optimistic studies.

The U.S. Department of Energy (DOE) is partially funding the construction of six such cellulosic biorefineries, estimated to cost a total of $1.2 billion. The first to be built will be the Range Fuels Biorefinery in Soperton, Ga., which will process wood waste from the timber industry into biofuels and chemicals. The DOE is providing an initial $50 million to start construction.

"Cost competitive, energy responsible cellulosic ethanol made from switchgrass or from forestry waste like sawdust and wood chips requires a more complex refining process but it's worth the investment," Energy Secretary Samuel Bodman said at the Range Fuels facility groundbreaking in November. "Cellulosic ethanol contains more net energy and emits significantly fewer greenhouse gases than ethanol made from corn."

In fact, Vogel and his team report this week in Proceedings of the National Academy of Sciences USA that switchgrass will store enough carbon in its relatively permanent root system to offset 94 percent of the greenhouse gases emitted both to cultivate it and from the derived ethanol burned by vehicles. Of course, this estimate also relies on using the leftover parts of the grass itself as fuel for the biorefinery. "The lignin in the plant cell walls can be burned," Vogel says.

The use of native prairie grasses is meant to avoid some of the other risks associated with biofuels such as reduced diversity of local animal life and displacing food crops with fuel crops. "This is an energy crop that can be grown on marginal land," Vogel argues, such as the more than 35 million acres (14.2 million hectares) of marginal land that farmers are currently paid not to plant under the terms of USDA's Conservation Reserve Program.

But even a native prairie grass needs a helping hand from scientists and farmers to deliver the yields necessary to help ethanol become a viable alternative to petroleum-derived gasoline, Vogel argues. "To really maximize their yield potential, you need to provide nitrogen fertilization," he says, as well as improved breeding techniques and genetic strains. "Low input systems are just not going to be able to get the energy per acre needed to provide feed, fuel and fiber."

New Formalism

Wednesday, March 30, 2011

The next 48 hours

In the next 48 hours, the first major battle against Big Labor power grabs this year comes to a vote in Congress, and I need your immediate action.

With the union hierarchy putting massive pressure on every member of Congress to vote their way, it's up to you to urge Rep. Joe Donnelly to stand up for worker freedom!

The U.S. House of Representatives is set to vote on an amendment to strip a critical pro-worker freedom provision from the pending Federal Aviation Administration (FAA) reauthorization.

It's absolutely vital you urge Rep. Joe Donnelly to vote AGAINST the LaTourette/Costello Amendment stripping Sec. 903 from the FAA bill (H.R. 658).

Please, call Rep. Joe Donnelly at (202) 225-3915 or click here to send an email right away!

You see, Sec. 903 overturns an Obama Administration bureaucratic power grab -- rammed through by two former union officials -- aimed at greasing the skids for the forced unionization of airline and railway workers.

And now Big Labor is turning up the heat on every member of Congress to support the amendment.

So please, urge Rep. Joe Donnelly to vote AGAINST the LaTourette/Costello Amendment to the FAA bill (H.R. 658).

Call Rep. Joe Donnelly at (202) 225-3915 or click here to send an email

In a recent vote in committee, a handful of Republicans voted with Big Labor-backed Democrats in favor of the Obama power grab -- failing by just one vote and demonstrating just how urgent it is for you to act NOW.

Last year, two former union officials installed onto the National Mediation Board (NMB) rammed through a rule change tilting union certification elections in favor of the union bosses, over the strenuous objections of the third member of the agency.

The FAA reauthorization bill contains language overturning the rule change, but now Big Labor apologists in Congress are trying to defend the union-boss power grab.

And now the union bosses are turning up the heat on every member of Congress -- Republican and Democrat alike -- to protect their ill-gotten gains.

It's vital you urge your U.S. Representative to vote against the LaTourette/Costello Amendment to the FAA bill (H.R. 658).

Please, call Rep. Joe Donnelly at (202) 225-3915 or click here to send an email!

Tell your Congressman to stand strong against Big Labor power grabs, whether they come as an act of Congress or the federal bureaucracy.

This vote is happening in the next two days, so it's vital you act IMMEDIATELY!

You see, until just recently, all workers covered by the National Railway Act -- including airline and railroad employees -- could only be forced under union boss control if a simple majority of workers agreed.

The other 49%? They have to just deal with it and pay up or be fired.

That's far from fair, I know.

But now, thanks to the National Mediation Board's rule change, it no longer even takes a majority.

When I heard the National Mediation Board's decision I was shocked.

But perhaps I shouldn't be.

This is the same Presidential Administration that pushed radical Big Labor bills like "Card Check," which would subject workers to threats, intimidation and WORSE from militant union organizers.

President Obama's and his union boss cronies' one goal is to FORCE more workers into unions and they'll do so by any means necessary.

Now, thanks to President Obama's National Mediation Board's decision, just a minority workers can force the entire company under union boss control.

But it gets worse.

It is virtually IMPOSSIBLE for workers covered by this decision to ever decertify their union.

Once Big Labor has seized control, they'll maintain it indefinitely.

And that means the union officials will be completely unaccountable!

The good news is, legislation will be voted on any day now in the U.S. House to override the National Mediation Board's decision.

But unless you act immediately, I'm afraid Big Labor could secure enough votes to strip the FAA reauthorization bill of this key provision.

And remember, this is the first real test in the new Congress after the American people rejected pro-forced unionism incumbents in November.

Will the new members of Congress stick true to their campaign pledges to fight government-granted special privileges for the union hierarchy, or will they become Big Labor-appeasers?

Only grassroots action from the American people -- led by Right to Work supporters like you -- can determine what happens next.

So please, urge your U.S. Representative to vote against the LaTourette/Costello Amendment to the FAA bill (H.R. 658).

Please, call Rep. Joe Donnelly at (202) 225-3915 or click here to send an email.

There's no time to waste. Please act NOW!


Mark Mix

P.S The pending Federal Aviation Administration reauthorization bill (H.R. 658) contains a provision (Sec. 903) to override the National Mediation Board's rule change aimed at forcing railway and airline workers under Big Labor's thumb.

But the union bosses are going all out to protect their ill-gotten power -- and the U.S. House will vote in the next 48 hours on an amendment to strip the provision from the FAA bill.

Please, call Rep. Joe Donnelly at (202) 225-3915 or click here to send an email right away! Tell your U.S. Representative to oppose the LaTourette/Costello Amendment to the FAA bill.

The National Right to Work Committee is a nonprofit, nonpartisan, single-purpose citizens' organization dedicated to combating compulsory unionism through an aggressive program designed to mobilize public opposition to compulsory unionism and, at the same time, enlist public support for Right to Work legislation.  The Committee's mailing address is 8001 Braddock Road, Springfield, Virginia 22160.  The Committee can be contacted toll-free at 1-800-325-7892.  Its web address is

Slaves to a Federal Tyranny

Slaves to a Federal Tyranny

by Thomas J. DiLorenzo,
The federal government today can wage wars without the consent of our congressional representatives, overthrow foreign governments, tax nearly half of national income, abolish civil liberty in the name of “homeland security” and “the war on drugs,” legalize and endorse infanticide (“partial-birth abortion”), regulate nearly every aspect of our existence, and there’s little or nothing we can do about it. “Write your congressman” is the refrain of the slave to the state who doesn’t even realize he’s a slave (thanks to decades of government school brainwashing).
But Americans were not always slaves to federal tyranny. Perhaps the best illustration of this is how Americans once utilized the Jeffersonian, states’ rights traditions of nullification and interposition to assist President Andrew Jackson in his campaign to veto the re-chartering of the Second Bank of the United States (BUS) in 1832. Jackson essentially ended central banking in America until it was revived thirty years later by the Lincoln administration. The story is told in James J. Kilpatrick’s wonderful 1957 book, The Sovereign States: Notes of a Citizen of Virginia.
The Bank was notorious for fraud, mismanagement, corruption, and attempts to engineer a “political business cycle.” Prior to 1861, the American people were still sovereign over their government. They exercised that sovereignty in the way the founders intended: through state political conventions or legislatures. The federal government was their agent.
Consequently, as early as 1816, Indiana and Illinois amended their state constitutions to prohibit the BUS from establishing branches within their jurisdictions. North Carolina, Georgia, and Maryland imposed heavy taxes on BUS branches within their states in attempts to tax them out of existence (A tax that even libertarians could love!). Knowing that such taxes could destroy the central bank, the federal government brought suit in Maryland (McCulloch vs. Maryland), confident that John Marshall, chief justice of the Supreme Court and a proponent of the BUS, would rule in its favor. He did, coining the famous phrase that “the power to tax involves the power to destroy” in his decision. He wasn’t expressing a fear that taxation could destroy private initiative and private enterprise, but that it could limit the federal government’s monetary monopoly.
Despite Marshall’s opinion that state taxes on the BUS were unconstitutional, numerous states continued to harass the bank. Until 1865, the Supreme Court’s opinion was just the Supreme Court’s opinion. The citizens of the states reserved the right to offer their own opinions on constitutionality, which they often considered to be every bit as valid as the Court’s. The same was true of certain presidents: Andrew Jackson essentially said “thank you for your opinion” and then thumbed his nose at the Court when it ruled that the BUS was constitutional.
After Marshall’s 1819 opinion, Ohio enacted a $50,000 per year tax on the BUS. The Bank refused to pay, so the Ohio state auditor ordered a deputy, one John L. Harper, to collect the tax. As Kilpatrick (p. 151) explains it:
[O]n the morning of September 17, Harper made one last request for voluntary payment. When this was denied, he leaped over the counter, strode into the bank vaults, and helped himself to $100,000 in paper and specie. He then turned this over to a deputy . . . stuffing this considerable hoard into a small trunk, with which the party thoughtfully had come equipped . . .
This would be the equivalent of today’s governor of Ohio ordering state troopers to enter the Cleveland Fed and strip its vaults of over a million dollars. The BUS sued Ohio, relying on Marshall’s opinion. The Ohio legislature considered such a lawsuit to be a threat to citizen sovereignty and a dangerous precedent to all Americans, not just Ohioans. It issued a statement saying, “To acquiesce in such an encroachment upon the privileges and authority of the States, without an effort to defend them, would be an act of treachery to the State itself, and to all the States that compose the American Union (emphasis added).”
The legislature stated that it was aware of the theory that the Supreme Court is to be the interpreter of the Constitution, but declared that “to this doctrine . . . they can never give their assent” (Kilpatrick, p. 152). The legislature quoted Jefferson’s Kentucky Resolve of 1798, which said that “as in all other cases of compact among parties having no common judge,” each party “has an equal right to interpret the Constitution for themselves, where their sovereign rights are involved . . .”
Marshall was wrong, the Ohioans said, because his opinion unconstitutionally encroached upon the sovereignty of the states. Therefore, they were under no obligation to acquiesce in his ruling.
The Ohio legislature promised to return the $100,000 if the BUS left the state. If not, it proposed a law forbidding “the keepers of our jails” from imprisoning any person “committed at the suit of the Bank of the United States”; prohibiting Ohio courts from “taking acknowledgements of conveyance where the Bank is a party”; and forbidding “our courts, justices of peace, judges and grand juries from taking any cognizance of any wrong alleged to have been committed upon any species of property owned by the Bank.” Invoking Jefferson’s “Doctrine of ’98,” the Ohioans concluded by “denouncing the Federal courts for violation of the Constitution” (p. 154).
The BUS persisted in its lawsuit, and eventually had the state treasurer arrested and imprisoned. While in prison, the keys to the state vaults were physically taken from him and the feds took back the $100,000, apparently still in the same trunk.
This act infuriated the Ohioans even more, and they continued to harass the Bank, as did many other states. Kentucky and Connecticut adopted Ohio’s states’ rights stand toward the Bank in 1825. In 1829, South Carolina imposed a tax on stockholders of the Bank within the state. New York and New Hampshire enacted resolutions urging that the Bank not be re-chartered. As Kilpatrick concludes:
In the face of this unrelenting warfare, the bank could not survive. Withdrawal of the public deposits began in August of 1833, under Jackson’s order; and when Pennsylvania governor Wolf, who had been one of the bank’s staunchest supporters, denounced the institution in . . . March of 1834, public opinion was fatally influenced against the bank. The Pennsylvania Senate adopted fresh resolutions urging that the bank ought not to be re-chartered. The following month, the United States House of Representatives adopted the same view, and the bank’s days came to an end (p. 157).
Andrew Jackson is usually given credit for (temporarily) ending central banking in America in the nineteenth century. But he had help. It was this expression of citizen sovereignty, in the spirit of the Jeffersonian states’ rights tradition, that made Jackson’s veto of the bank politically possible.
States’ rights as a check on the tyrannical proclivities of the central government ended in 1865, of course. As Forrest McDonald noted in States’ Rights and the Union (p. 224), after Lincoln’s war the Supreme Court “became the sole and final arbiter of constitutional controversies. No longer could a Jefferson arise to insist that the other branches of the federal government had coequal authority to determine constitutionality. No more could a Calhoun arise to defend a doctrine of interposition or nullification.”
The imperious Woodrow Wilson would celebrate this fact in his 1908 book, Constitutional Government in the United States, where he wrote (p. 178) that “the War between the States established . . . this principle, that the federal government is, through its courts, the final judge of its own powers.”
In A View of the Constitution, published a century earlier, the Jeffersonian legal scholar St. George Tucker cited this phenomenon as the very definition of tyranny. If the federal government ever became the final judge of the limits of its own powers, Tucker warned, then constitutional liberty would become an empty phrase. The federal government would inevitably conclude that there are, in fact, no limits to its power.
Note: This article was originally published on May 9, 2003
Copyright © 2003  Permission to reprint in whole or in part is gladly granted, provided full credit is given.

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EXCLUSIVE: Should Kagan Recuse from Health Cases? Internal DOJ Emails Raise Questions

Tuesday, March 29, 2011
Elena Kagan
Applause for President Obama's Supreme Court nominee Elena Kagan at the White House on Monday, May 10, 2010. (AP Photo/Susan Walsh)
( - “Absolutely right on. Let’s crush them,” wrote Principal Deputy Solicitor General Neal Katyal. “I’ll speak to Elena and designate someone.”
The Elena here is then-Solicitor General Elena Kagan--now a justice on the U.S. Supreme Court.
Katyal was writing at 10:57 a.m. on Friday, Jan. 8, 2010. Two weeks before that, on Christmas Eve, the U.S. Senate had passed the Patient Protection and Affordable Care Act, the unprecedented bill promoted by President Barack Obama that mandated that individual Americans must buy health insurance.  Already—as reported in a Dec. 30, 2009 New York Times article--Florida Attorney General Bill McCollum was examining the possibility of a lawsuit to challenge the bill if it became law and, as the Times put it, there were “nearly a dozen other states who have also threatened to sue over the mandate.”
Katyal on the morning of January 8 was responding to an email—sent under the subject line “Health Care Defense”--that he had received from Brian Hauck, senior counsel to Associate Attorney General Tom Perrelli.
“Hi Neal,” Hauck had written. “Tom wants me to put together a group to get thinking about how to defend against the inevitable challenges to the health care proposals that are pending, and hoped that OSG [Office of the Solicitor General] could participate. Could you figure out the right person or people for that? More the merrier. He is hoping to meet next week if we can.”
Neal Katyal
Acting Solicitor General Neal Katyal (Wikimedia Commons photo)
Less than a minute after writing back to Hauck indicating his desire to “crush” the “inevitable challenges” to the health-care bill, Katyal forwarded Hauck’s email to his boss, Solicitor General Elena Kagan. He politely nominated himself to be the OSG’s point man in dealing with the anticipated litigation.
“I am happy to do this if you are ok with it,” he told Kagan. “Otherwise [Deputy Solicitor General] Ed [Kneedler] would be the natural person. Or both of us.”
Someone familiar with Katyal’s stellar career as a passionate advocate of liberal legal causes might not have been surprised that when he first heard the Justice Department was putting together a team to plan the administration’s defense against legal challenges to the health care bill, he would instantly express to a colleague his desire to “crush” those challenges and to his boss his desire to be assigned to deal with them.
Katyal, whom President Obama named principal deputy solicitor general at age 39, had graduated from Yale Law School, clerked for Supreme Court Justice Stephen Breyer (a Clinton appointee), and worked in the deputy attorney general’s office in the Clinton Justice Department.
In 2000, he had served as co-counsel for Democratic presidential candidate Al Gore when Gore contested the Florida recount in the Supreme Court. In 2004, he took on the case of Salim Hamdan, Osama bin Laden’s driver. In the 2006 case of Hamdan v. Rumsfeld, he convinced the Supreme Court that the type of military commissions President Bush had set up for Hamdan and other alleged unlawful enemy combatants had not been appropriately authorized by Congress. (Congress later passed a new law authorizing the commissions and Hamdan was eventually convicted of providing material support to terrorism--although he was sentenced to only five and a half years.)
Hamdan v. Rumsfeld was decided 5-3—with 8 justices rather than 9--because Chief Justice John Roberts recused himself. Roberts had previously served on the appeals court panel that reviewed the Hamdan case and unanimously rejected Katyal’s arguments. The chief justice had apparently decided that people might reasonably question his impartiality if he ruled on the case again at the Supreme Court level.
After winning Hamdan, Katyal won the ACLU Foundation’s Roger Baldwin Award and Amnesty International’s Human Rights Defender Prize.
Thus it was a man who had already demonstrated formidable skill in advancing an unpopular liberal cause all the way through the Supreme Court who had emailed Solicitor General Kagan that morning in January 2010 to let her know he would be “happy” if she assigned him to the team planning the legal defense of the health-care bill.
Would Kagan take him up on it?
Two minutes and 23 seconds after Katyal emailed Kagan, she emailed back. “You should do it,” she said in a short, to-the-point message.
'Bring In Elena As Needed'
At 11:01 a.m., Jan. 8, 2010, it was settled. Katyal had the health-care assignment. But he did not send another return email to Hauck in the Associate Attorney General’s Office for another two hours. When he finally did send one at 1:05 p.m., it appeared to have a bit more information about how Kagan wanted OSG to handle the health-care issue than Kagan had written to Katyal in her brief 11:01 a.m. message.
“Brian, Elena would definitely like OSG to be involved in this set of issues,” Katyal told Hauck in his 1:05 p.m. email. “I will handle this myself, along with an Assistant from my office [name redacted] and will bring in Elena as needed.”
In February and March 2011, having followed through on the assignment Kagan first gave him in January 2010, Katyal signed documents that the U.S. Justice Department filed in two separate U.S. appeals courts countering the lawsuits brought by Virginia and Florida against the health-care bill that the Senate passed that Christmas Eve two years ago.
The Jan. 8, 2010 email chain cited above, along with others the Justice Department provided to in response to a Freedom of Information Act request, raise questions about whether Supreme Court Justice Elena Kagan ought to recuse herself from the health-care cases officials from her former office will soon argue in her court.
In the questionnaire she filled out for the Senate Judiciary Committee before her confirmation hearing, Kagan explained her thinking on the recusal issue. Among other things, she said she would abide by the “letter and spirit” of 28 U.S.C. 455.
This law states that any “justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.”
It also states that any justice, judge or magistrate “shall also disqualify himself … [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.”
The Jan. 8, 2010 email exchanges between Katyal and Kagan took place four months before President Obama nominated Kagan to the Supreme Court on May 10, 2010— only after which she recused herself as solicitor general. They took place two months before March 5, 2010—when, according to Kagan’s questionnaire for the Senate Judiciary Committee, the White House first informed her that the president wanted to consider her for a potential Supreme Court vacancy.
In other words, at the time of the Jan. 8, 2010 email exchanges, Kagan was in full bore as solicitor general--a position responsible for defending the administration’s positions in federal court.
Did Kagan at any time as solicitor general express an “opinion concerning the merits” of the lawsuits filed against the health care law—an act that would trigger one of the recusal standards in 28 U.S.C. 455? In the text of the emails the Justice Department provided to, Kagan does not do so.
Could her “impartiality” in the case be “reasonably questioned”?
What, if anything, did Kagan say to her principal deputy, Neal Katyal, on that workday after she assigned him to the group planning the Justice Department’s defense of the health care bill and before Katyal sent his email to Hauck saying: “Elena would definitely like OSG to be involved in this set of issues” and that he would bring her in “as needed.”
Via email, asked Katyal that and many other questions. He forwarded the questions to Tracy Schmaler, deputy director of the Justice Department’s Office of Public Affairs. In response to’s questions, Schmaler provided this statement: “During her tenure, former Solicitor General Elena Kagan did not play any substantive role in litigation challenging healthcare reform legislation, and the documents that have been released reflect that.”
During Kagan’s Senate confirmation process, Republicans on the Senate Judiciary Committee asked her a series of written questions probing the possibility that she might have been involved in the cases challenging the health care law or in discussing the underlying legal and constitutional issues arising from any proposed health care legislation.
Two of the senators’ questions took in the health care issue with a very broad sweep.
One asked Kagan: “Have you ever been asked about your opinion regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”
Another asked: “Have you ever offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to any potential litigation from such legislation?”
Kagan’s response to both questions was: “No.”
On the face of it, that means that between Jan. 8, 2010, when the Justice Department started planning to respond to legal challenges to the health care bill--and Kagan did not yet know she was going to be nominated to the Supreme Court--and May 10, 2010, when President Obama did nominate her to the Supreme Court and she recused herself as solicitor general, neither Katyal nor anyone else at the Justice Department “ever asked” Kagan her opinion, and she never “offered” her views, on the “underlying legal or constitutional issues related to potential litigation resulting” from the health care bill.
'To Make Sure Our Office Is Heavily Involved'
In the questions it submitted to now-Acting Solicitor General Neal Katyal, asked: “Did you personally speak at any time that day [Jan. 8, 2010] to Solicitor General Kagan about what the Justice Department viewed as the inevitable challenges to the health-care proposal or the department’s need to plan to defend against them?” also asked: “If you did speak to Solicitor General Kagan that day about the inevitable challenges to the health care proposal or the Justice Department’s need to start planning the administration’s defense against them, what did you say to her and what did she say to you?”
And: “How did you know on that day that Solicitor General Kagan ‘definitely’ wanted her office involved in planning the administration’s treatment of the ‘set of issues’ involved in the inevitable challenges to the health-care proposal?”
And: “Did you ever in any way communicate to Solicitor General Kagan, as you did to Brian Hauck in your Jan. 8, 2010 email, your desire to ‘crush’ or otherwise defeat the challenges to the health-care proposal? If so, how did Solicitor General Kagan respond?” also asked: “Did Solicitor General Kagan ever communicate to you a desire on her part for the administration to succeed in its defense against challenges to the health-care proposals?”
Again, to these questions and others, the Justice Department would only respond with Schmaler’s statement that “Kagan did not play any substantive role in litigation challenging healthcare reform legislation, and the documents that have been released reflect that.”
The week after the Jan. 8, 2010 email exchange--while Katyal was out of town--the Justice Department went ahead with its first meeting to plan its response to the anticipated health care litigation. That same day, a colleague (whose name has been redacted) sent Katyal an email summarizing the meeting.
“The basic plan is to do some anticipatory thinking about claims that will be asserted and how we will defend against them,” said the colleague. “It turns out that Civil has already started this, and hopes to produce some model briefs or memos. The big areas of possible litigation are [here the Justice Department has redacted about two lines of text]. The expectation is that a bill could pass and be signed by mid-February, so we could be in litigation soon after. There is a possibility of both well-financed sophisticated challenges, as well as numerous pro se and frivolous claims.”
In a return email, Kagan’s deputy Katyal wrote: “I want to make sure our office is heavily involved even in the dct [District Court].”
In early February , after the Democrat-controlled Virginia state Senate passed a bill making it illegal to force someone in Virginia to purchase a health insurance plan—a direct challenge to the insurance mandate in the pending federal health-care bill--Virginia Attorney Ken Cuccinelli appeared on Fox News with Neal Cavuto and indicated he would fight in court to defend Virginia’s law against the federal bill if it was enacted.
“I'm looking forward to that contest if they want to bring that fight,” Cuccinelli told Cavuto. “We will be on the side of defending the Constitution.”
About a month after that, on March 5, 2010, as Kagan reported in her Senate Judiciary Committee questionnaire, White House Counsel Bob Bauer and Deputy White House Counsel Susan Davies first informed her that President Obama “wished to consider” her “for a possible Supreme Court vacancy.”
With both Florida and Virginia threatening to sue over the health care legislation, what was going on with the Justice Department’s preparations to defend the pending health care bill in court?
On March 17, 2010, Katyal emailed Associate Attorney General Tom Perelli. “Tom, I recall you were going to set up a group to deal with the inevitable challenges to this legislation,” Katyal wrote. “Now that this is coming back, I wanted to circle back and see if you still are developing such a litigation group.”
A few minutes later, Perelli responded: “Neal—I tabled it when things looked bleak, but we should do it. I’ll get something together in the next week.”
'What's Your Phone Number?'
Four days later, on Sunday, March 21, 2010, the U.S. House of Representatives was moving to pass the health care bill that had passed the Senate back on Christmas Eve. At 6:11 that evening, Perelli emailed a number of senior Justice Department lawyers, including Katyal--but not Kagan. His subject line: “Health care litigation meeting.” It would be held at the White House the next day.
“It sounds like we can meet with some of the health care policy team tomorrow at 4 to help us prepare for litigation,” said Perelli. “It has to be over there.”
“Also,” said Perelli,” we need to think about the key issues/questions for the agenda.”
Katyal forwarded Perelli’s Sunday night email to Kagan 8 minutes after he received it.
“This is the first I’ve heard of this,” Katyal told Kagan. “I think you should go, no? I will, regardless, but feel this is litigation of singular importance.”
Although she had been informed more than two weeks before that the president was considering her for a Supreme Court nomination, Kagan was still solicitor general on March 21, 2010 and no Supreme Court Justice had announced he or she would be retiring. Would the solicitor general go to the White House planning meeting on health-care litigation? Would she give Katyal instructions for the meeting? Would she give him her thoughts on the “key issues/questions for the agenda” that Perelli wanted to discuss at the White House?
One minute after Katyal had forwarded Perelli’s email to Kagan, she emailed back. “What’s your phone number?” she asked
Katyal emailed Kagan his number--and that’s where that email chain ends.
“What did you and Solicitor General Kagan discuss that evening about the health-care litigation, the White House meeting about it, or related issues after you sent her your phone number?” asked Katyal in its written questions. Like all of questions, these were covered by the Justice Department’s blanket answer that “former Solicitor General Elena Kagan did not play any substantive role in litigation challenging healthcare reform legislation, and the documents that have been released reflect that.”
Two days after Katyal emailed Kagan his Sunday-night phone number, President Obama signed the health care bill into law. That same day, Virginia and Florida filed suit against it, claiming it was unconstitutional. Obama would not nominate Kagan to the Supreme Court for seven more weeks, and she would not recuse herself from her duties as solicitor general until then.
'I Attended At Least One Meeting'
During the confirmation process, in their written questions to Kagan, Senate Judiciary Republicans would ask her if she had ever attended any meeting where Florida’s lawsuit against the health-care law was discussed.
“I attended at least one meeting where the existence of the litigation was briefly mentioned,” she responded, “but none where any substantive discussion of the litigation occurred.” (No documentation of this meeting or meetings has been released by the Justice Department in response to’s FOIA.)
The Judiciary Committee Republicans also asked Kagan if any documents had been filed in the Florida case while she was solicitor general.
“Yes,” said said. “I did not participate in Florida v. U.S. Department of Health and Human Services, so I do not have any firsthand knowledge of the filings in that case. A search of the federal district court’s docket entry shows that many documents were filed during my tenure as Solicitor General, including several by the Justice Department: a notice of appearance filed on April 20, 2010; a motion to extend time filed on May 25, 2010; a motion for leave to file excess pages filed on June 11, 2010; and a motion to dismiss filed on June 16, 2010.”
Justice John Paul Stevens announced on April 9, 2010 that he was retiring from the court. Over the next month, according to the Associated Press, President Obama interviewed four candidates to replace Stevens. These included U.S. District Judge Diane Wood, U.S. appeals court judges Merrick Garland and Sidney Thomas, and Kagan.
According to Kagan’s Judiciary Committee questionnaire, the president told her on May 9, 2010 that he wanted to nominate her to the court. The next day Obama announced the nomination.
'The Possible Nexus to the Health Care Bill'
The day after the announcement—and 49 days after Florida and Virginia had filed suit against the health care law--Katyal sent an email to deputy solicitors general Malcolm Stewart and Edwin Kneedler saying it was his belief that Kagan would from then on recuse herself from “new cases” as solicitor general.
“As I understand it,” Katyal wrote, “Elena is going to recuse from all new cases.” He wanted to know if there were any CVSGs [Calls for the Views of the Solicitor General from the Supreme Court on cases the court was being asked to take on appeal] that the deputies were working on that Kagan had not been involved in at all.
“Are there any CVSGs you have due by cutoff in which she has not participated at all (either in meetings, phone calls, discussions with you, etc.)?” asked Katyal. “She has participated in all of mine, what about yours.”
In responding , Deputy Solicitor General Edwin Kneedler mentioned a case—Golden Gate Restaurant Association v. the City and County of San Francisco—that involved a legal challenge to a municipal ordinance in San Francisco that mandated that employers spend money on health care for their employees. The restaurant association had sued to prevent enforcement of the law arguing that a provision in the federal Employee Retirement Income Security Act (ERISA) preempted “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” and thus preempted San Francisco’s health-care mandate.
The restaurant association won at the district court level and the city won in the 9th Circuit appeals court. The restaurant association then asked the Supreme Court to take up the case.
On Oct. 5, 2009, the Supreme Court issued a “CVSG” to Solicitor General Kagan seeking her views on whether it should do so.
“The Golden Gate case presents special considerations because of the possible nexus to the Health Care bill,” Kneedler told Katyal in his May 11, 2010 email. “I think I did have some minimal discussion with her [Elena] about that case.”
The next morning, May 12, 2010, Katyal sent another email to Kneedler, Stewart and Deputy Solicitor General Michael Dreeben. Here Katyal said Kagan was definitely stepping aside from any “new cases” and asked the deputies for lists of the cases wher she had “substantially participated already.”
Katyal said Kagan might sign the briefs in those cases, and specifically told the deputies to “exclude” cases in which they had had a short conversation with Kagan. The lists they were compiling, he told them, was not about her potential recusals if she were confirmed to the Court.
“From now on, until the outcome of her pending confirmation hearing, Elena will not be participating in new cases,” Katyal wrote. “All opps, appeal recs, etc., will not have her name on them, and [redacted text] we should use my name as Acting SG.
“There is a small universe of cases in which Elena has substantially participated already (this includes CVSGs where she chaired meetings, etc.),” wrote Katyal. “As to those cases, she very well may sign the briefs. With this email, I’d ask each Deputy sometime today to send me a full list of cases that you think fall into that category. Exclude matters in which you have had short conversations with her. This isn’t a list regarding her recusals at the Supreme Court should she be confirmed; rather it is a list for her so that she knows what cases she might be signing briefs in.”
At 5:53 p.m. that day, Katyal sent another email to Deputy Solicitor General Kneedler. “I really need your list shortly,” Katyal said. “This is important.”
At 6:31 p.m., Kneedler emailed back his list. He again drew attention to the Golden Gate case, suggesting Kagan might “not want to be involved in” it.
“Golden Gate—I discussed it with Elena several times [text redacted],” wrote Kneedler. “Especially now that health care has passed, she may not want to be involved in that brief.”
In fact, among the emails released by the Justice Department, there is an exchange between Kneedler and Kagan referencing the Golden Gate case and the health-care bill. It is dated Monday, March 22, 2010—the day after the House of Representatives approved the health care bill and the day before President Obama signed it.
The email from Kneedler is addressed to Katyal, Kagan and fellow OSG deputies and carries the subject line: “RE: 2 week report.”
“Golden Gate: [name redacted] plans to turn to this after his argument. He has requested from DOL [Department of Labor] by early next week an insert for the brief identifying the provisions in the health care bill (as it will be reconciled) that are relevant to the preemption issue in this case,” wrote Kneedler.
“Thanks, Ed,” Kagan responded. “And is [text redacted] on Golden Gate?”
“I don’t think so. Let me check,” Kneedler responded.
In a May 13, 2010 memorandum from Katyal to Kagan—headlined “Current Cases You Have Worked On”—Katyal says: “The below contains a list of cases in which we feel that you have substantially participated. It is organized by Deputy. We have not done an exhaustive search, so this should not be used as the basis for deciding recusals should you be confirmed. It is simply a document that you may use to guide your decisions about which cases to participate pending your nomination.”
The Golden Gate case was listed in the memo under Kneedler’s section. “Golden Gate,” it said. “Ed discussed this with Elena several times [text redacted].”
Fifteen days later, on May 28, 2010, the OSG filed its brief with the Supreme Court in the Golden Gate case. Even though Kneedler said he had discussed the case “several times” with Kagan before she was nominated to the Supreme Court, Kagan did not go ahead and sign the brief. Instead, Katyal signed it as “Acting Solicitor General/Counsel of Record” and Kneedler signed it as deputy solicitor general.
The 26-page document made at least 11 references to the Patient Protection and Affordable Health Care Act—President Obama’s health care law. It argued that this new federal law would impact issues related to the San Francisco health-care law, including through new regulations that would issued by the Health and Human Services secretary, and that, therefore, the Supreme Court should not take it up at that time.
“As discussed above, the intervening enactment of comprehensive federal health care legislation has dramatically changed the landscape governing payment for health care, substantially reducing the importance of the question whether ERISA preempts state or local requirements and also giving rise to additional legal issues that have not been addressed by the federal Departments responsible for implementing the new legislation or by the courts,” the brief signed by Katyal and Kneedler concluded. “Accordingly, this Court’s review of the ERISA preemption issue is not warranted at this time.”
'This Needs to Be Coordinated'
A week later, at 1:03 p.m. on May 17, 2010, Justice Department Spokesperson Schmaler sent Katyal an email with the subject “HCR litigation.”
“Has Elena been involved in any of that to the extent SG office was consulted?” wrote Schmaler. “Know you have been point but expect I’ll get this q.”
One minute later, Katyal emailed back. “No, she never has been involved in any of it,” Katyal said. “I’ve run it for the Office, and have never discussed the issues with her one bit.”
After another minute, Katyal sent Schmaler another response, referencing the subject line of Schmaler’s original email. “Hcr is health care reform, right?” asked Katyal. “If so, then my previous answer stands.”
Six minutes later, at 1:11 p.m, Schmaler responded. “Yes – thanks,” she told Katyal.
About 8 minutes after that, Katyal sent Kagan the original email exchange between him and Schmaler in which Schmaler asked if Kagan had been involved in health-care legislation and Katyal responded said she had never “been involved in any of it.”
“This is what I told Tracy about health care,” Katyal told Kagan.
About a minute later, Kagan responded to both Katyal and Schmaler. “This needs to be coordinated,” Kagan wrote. “Tracy, you should not say anything about this before talking to me.”
Four minutes after that email, Katyal responded to Kagan but not Schmaler. “Got it,” he said. “I have been receiving a plethora of inquiries, from Tracy, Ali, Kravis, etc. about a whole variety of things like the below for several days now. Most of them aren’t that sensitive so I don’t pass them on to you. I am very happy to just stay out of this and have you field these inquiries if you’d like. Just let me know.”
About an hour after that, Schmaler sent both Katyal and Kagan a response to Kagan’s this-needs-to-be-coordinated email. “Sure – no one asked yet … Just expecting it,” Schmaler said,
A month passed. On June 15, 2010, two weeks before Kagan’s confirmation hearings, the email trail released by the Justice Department ends. On that day, Katyal sent Kagan a message describing a conversation he had had with the attorney general.
“FYI,” wrote Katyal. “Also AG just told me that he expects a big story coming out shortly about whether you are recused in health care litigation. I went over the timing that you have been walled off from Day One.”
When exactly was this “Day One” when Kagan was “walled off” from health care? That is another question the Justice Department did not answer beyond its blanket statement that she “did not play any substantive role in litigation challenging healthcare reform legislation.”
On Feb. 28, the Obama administration filed its brief in the U.S. Court of Appeals for the 4th Circuit in the case of Commonwealth of Virginia v. Sebelius. The brief asks the court to reverse the decision of a U.S. district judge in Virginia who ruled that the health-care law signed by President Obama is unconstitutional. Now-acting Solicitor General Neal Katyal--first assigned to this issue by Elena Kagan on Jan. 8, 2010--was the lead signer of the brief.
On March 8, the administration filed a motion asking the U.S. Court of Appeals of the 11th Circuit to expedite the administration's appeal of the ruling of a U.S. district judge in Florida who also ruled that the health-care law is unconstitutional. Katyal signed this document, too.
It remains an open question whether Justice Kagan will recuse herself from these cases, or sit in judgement of them, when they reach the Supreme Court.
Katyal has now served as acting solicitor general for ten months--since Kagan's nomination. But on Jan. 24, President Obama passed him over for the full-time job, nominating instead Deputy White House Counsel Donald Verrilli, Jr.


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