Newly-Released Documents Show DOJ Knew Stupak Agreement Was a Sham

Efforts by the watchdog group Judicial Watch to demand that Justice Elena Kagan recuse herself when Obamacare is brought before the Supreme Court later this year resulted in the release of emails between Kagan (back when she was Solicitor General) and a top Department of Justice official which, unsurprisingly, confirm what pro-lifers have been saying all along about the phony agreement.

Namely, that the executive order signed by President Obama to give cover to Bart Stupak and his “pro-life” Democrats for them to support Obamacare was a joke (emphasis mine):

Kagan, while serving as President Obama’s Solicitor General, exchanged emails with her then-colleagues in the Justice Department indicating her support for the Obamacare legislation when it was under consideration in Congress.

“I hear they have the votes, Larry!! Simply amazing,” Kagan wrote, in an email obtained by Judicial Watch, on the day Obamacare passed through Congress. Larry Tribe, a Harvard Law professor and Supreme Court attorney who served as “senior counselor for access to justice” in the Department of Justice (DOJ), replied to Kagan that the bill’s passage was “remarkable.”

“And with the Stupak group accepting the magic of what amounts to a signing statement on steroids!” Tribe added in delight, and in derision for the pro-life Democrats.

Here’s what Tribe means by a “signing statement on steroids” — he means the executive order was little more than a photo-op. Why? Because the president doesn’t write the law – Congress does.

In other words, Obama got Stupak and the last Democrat hold-outs to accept the “magic” (fake political theater) of voting for a bill while claiming they didn’t vote for it because the executive order changed it. But the executive order did no such thing, because Obamacare is the law now, not any executive order.

Imagine a contract that’s very important to you. How confident would you be in that contract if your lawyer explained how it actually works is “magic”? Not very confident? You’d be correct.

I think it’s important that we don’t lose sight of how significant this behind-the-scenes glimpse at the opinion of a top Department of Justice official is. It confirms what many of us suspected all along, that the final Stupak “compromise” amounted to a total collapse and capitulation of the “pro-life” Democrats.

There are those on the pro-abortion Democrat side that absolutely dispute these pro-life claims. One of the Stupak congressman who went on to lose re-election in 2010 is (last I heard) waging a legal battle against the Susan B. Anthony List over this very issue of abortion funding in Obamacare and the executive order.

So this isn’t small potatoes, this is absolutely essential to the fundamental disagreement, for instance, the U.S. Bishops had with the final legislation that was passed, and over which Sr. Carol Keehan of the Catholic Health Association publicly defied and privately went behind the backs of the U.S. Bishops over.

I guess the simplest way to put this revelation is as follows: add a Harvard law professor and the “senior counselor for access to justice” of the Department of Justice to the long list of experts who agree that President Obama’s executive order was a sham — “magic”.

I hope Judicial Watch and other watch dog groups continue to demand transparency from the administration on this point to discover what other officials in the administration knew in advance that the final compromise brokered between the President and the “pro-life” Democrats was fundamentally misleading to the American public. Nothing more than “magic” that will have decidedly unmagical consequences for the rest of us.



  • Jay McNally


    Not only did the DOJ know that the Stupak Amendment wording was a “sham,” so did the pro-life movement, which denounced it the instant it was announced. Stupak’s pro-life endorsements in Michigan were canceled almost immediately after the vote.

    You (and most of the Catholic press) are re-writing history by ignoring the amazing and irrefutable fact that the Stupak Amendment was crafted by USCCB staffers huddled, for hours, in Peloi’s office the night before the vote. The bishops publicly approved the wording.

    Sean Winters wrote about this and nobody at the USCCB has denied any of it. Here is the link:

  • bpeters1

    One thing that I rarely hear discussed regarding Stupak & his cohort is his claim that “Pelosi had enough votes to pass the health bill without him and the bloc of six or seven votes he brought with him, and that she released some vulnerable Democrats from voting for the bill after he agreed to support it.” People like Jimmy Akin have claimed that this state of affairs was implausible, asking why Pelosi would make a deal at that point. But I think that Pelosi could very well have been motivated by trying to save some vulnerable House seats, as well as by avoiding the PR spectacle if the bill passed with Stupak and co. still lined up against it. If this state of affairs really obtained, Stupak & co. were between a rock and a hard-place, and they figured that the EO (even if, simply “magic”) was better than nothing at all (in the very least, it’s bad PR to have the Obama administration publicly contradict its own EO in its enforcement of the law). I also think that Stupak’s claim is either ignored or dismissed on CV and places like it b/c many are, for a variety of reasons, pretty upset that the bill passed and “Stupak caved” makes for a nice simple “bad guys” vs. “good guys” narrative — but politics is rarely that cut and dried.

  • Jean Paul

    Re: executive orders not being law (since I think this is what is meant by calling the EO “magic”)

    Not sure this is the case. My understanding is that executive orders carry the weight of law.

    Did I miss something?

    • John V

      Congress passes legislation, and the Executive Branch implements and enforcesit. To a large extent the details of how that implementation will be carried out is done by regulations, but sometimes it’s done by Executive Order. An Executive Order (and a regulation for that matter) can “fill in the gaps” where the legislation leaves an area open to interpretation, but it cannot contradict the legislation it’s supposed to be implementing. Where there’s a conflict, the law trumps the executive order.

  • Farzak

    Well, I suspect every one of the supreme court justices have a personal opinion about the affordable healthcare act. That doesn’t mean that they won’t be impartial to the legal arguments. I don’t see anything here that would require recusal.

    • Rufus Choate


      Apparently you don’t understand the concept of Juridical Recusal. Kagan engaged in the preparation of legal briefs and creation of the Obama’s administrations legal strategy for defending Obama care as solicitor general. If she does recuse herself there will never be a cause for recusal ever again.

      The point is the Stupak Pro-Life coalition was decieved.

      • Brian C

        If a Justice is recused, what happens when the remaining justices are divided 4-4 in a vote?

        • Michael

          @Brian C. The law in question remains with a split ruling…it will not be overturned. However, the justices’ decision can not be used as precedent in future cases.

      • Michael

        True, but then Clarence Thomas has to recuse himself…his wife is being paid to fight Obamacare.

        • Whitney

          Michael, that is different. Obamacare is clearly unconstitutional, and defending the Constitution is the duty of all American citizens. It would be unfair to Justice Thomas for him to recuse himself because his wife is being a good citizen. Kagan, on the other hand, must recuse herself because she was personally involved in unconstitutional activities related to this decision. She is clearly not fit to judge the case. However, because she is a liberal 0bama lapdog she will stay, and do her best to promote the radical pro-abort Obamacare legislation.

          • Michael

            Whitney, what you are saying makes no sense. Thomas’ wife is a lobbyist; Kagan was the solicitor general…and you say Thomas’ wife was being a good citizen, but Kagan was not? How is Thomas not a conservative lapdog for Republican policies (have you read Citizens United?). The Thomas household benefits financially from seeing the end of the Affordable Care Act…if that’s not a reason to recuse one’s self, then I don’t know what one is.

          • MikeM

            There is no similarity between Kagan’s and Thomas’ position on this. Kagan worked on the healthcare bill as a member of the President’s administration. She helped craft the legal justification for the law.

            There’s a problem when you have someone work on a law and then enter the judiciary and rule on it. She’d be judging, in part, her own work and the legal arguments she crafted.

            Thomas, on the other hand, has had nothing to do with law, himself. His wife happens to work for a conservative political organization which, obviously, opposed Obamacare, but if Thomas had to recuse himself over that, he would have to recuse himself in countless cases… as would any other supreme court justice whose spouse worked in the political realm.

          • Joe M

            MikeM. Exactly. The argument that Thomas should recuse is a guilt by association fallacy. Also, a slippery slope if we consider all of the outside relationships any judge might have. Direct contact with the subject being judged, as in Kagan’s case, is clearly different.

          • Dave

            Whitney, you’re proposing a crazy system. The law is unconstitutional before the Supreme Court decides the case? Who made you the arbiter of such decisions? Furthermore, Kagan DIDN’T work on the law, because that wasn’t her job…look at the only quote that crazy conservatives can pull…she said “They have the votes, Larry!” Boy, that’s a conflict of interest. Under those standards, I’d have to recuse myself too.



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