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DOJ’s Shady Business on Kagan and ObamaCare

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The Department of Justice’s (DOJ) lack of transparency on Supreme Court Justice Elena Kagan’s involvement with ObamaCare proves, once again, not only that Justice Kagan should recuse herself from the upcoming case on the law’s constitutionality, but also that Attorney General Holder continues to place politics above justice.

The Obama administration and Kagan herself have always denied she had any involvement on the administration’s health care discussions. Yet the evidence suggests otherwise.

E-mails obtained by Judicial Watch reveal that Kagan was invited to meetings on the topic, and everyone in the administration thought this law was “of singular importance.” They wanted to be ready for the “inevitable challenges” to ObamaCare.

The e-mails reveal that she supported the legislation, celebrating when she heard they had the votes to pass it. But they also suggest the Obama administration knew that it wanted her at the Supreme Court to hear the case because they wrote statements like:

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.

“From day one,” why?

It is inconceivable that Kagan did not discuss such an important piece of legislation when her opinion as Solicitor General was so valuable to the administration. Those e-mails paint a very different picture than what the Obama administration would have us believe.

Concerned with this, 49 members of Congress asked the House Judiciary Committee to look into Kagan’s participation in the crafting of the argument to defend ObamaCare. Committee Chairman Lamar Smith (R-Texas) acted on this request by asking DOJ, under Attorney General Eric Holder, to provide all documents regarding Kagan’s involvement, exercising the Committee’s oversight power.

But DOJ decided to thumb its nose at the congressmen’s concerns. In the letter responding to Chairman Smith, they said:

We are unaware of any precedent for Congress to conduct a post-confirmation investigation regarding the pre-confirmation activities of a sitting Justice, and we would regard such a course of action as an unseemly encroachment on the judicial branch of government.

They promptly denied the request, citing no legal authority to do so.

Chairman Smith has asked DOJ to reconsider their denial or provide a legal basis for their refusal to comply, but they simply ignore this request, apparently for political considerations alone. In his latest letter, Smith asks the White House, along with DOJ, to provide these materials, but it is unlikely that they will cooperate.

Why? What do they have to hide?

In a recent press release, Chairman Smith said:

The public has a right to know both the full extent of Justice Kagan’s involvement with this legislation while she was Solicitor General, as well as her previously stated views and opinions about the legislation while she was serving as Solicitor General.

Indeed. The fact that the Obama administration and DOJ simply will not comply with this reasonable request suggests that their story that Kagan was not involved at all but was “shielded from day one” from discussions on this legislation is simply not true. They could put an end to the discussion by providing the materials. What do they have to lose if they are telling the complete truth on this matter?