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The House Judiciary Committee opens an investigation into Elena Kagan’s role in crafting the defense of Obamacare

July 7, 2011

  Acting on the request of Darrell Issa and 48 other members of the House, the House Judiciary Committee is launching an investigation into the role that Elena Kagan had in drafting the Obama regime’s defense of the healthcare reform legislation. At issue here is a possible conflict of interest between Elena Kagan’s role as Solicitor General in crafting the Obama regime’s defense of the legislation–as well as the possibility that she was less than honest during her confirmation hearing–and her new role as Supreme Court justice where she will hear the defense of the legislation she may have had a hand in creating.

    Before she became Barack Obama’s latest appointee to the Supreme Court, Elena Kagan was Barack Obama’s Solicitor General. As Solicitor General she was charged with presenting the government’s arguments on any case which makes it to the Supreme Court. While she was still the Solicitor General, Obamacare was passed and the constitutional challenges began; when she was nominated to the Supreme Court she was asked about a possible conflict of interest on the pending Obamacare challenge–and whether she would recuse herself if there were–and she testified that she had virtually no role in preparing the Obama regime’s defense. It seems highly unlikely to me that the person charged with defending the government’s position in front of the Supreme Court would not also have a hand in crafting the position she would take during the defense, but that is what she claimed.

  The House Judiciary Committee sees the possibility of a conflict of interest, and as stated above, has begun to investigate the matter.

The inquiry will look at whether Kagan is required by law to recuse herself from judging cases challenging President Obama’s health-care law and whether her answers to questions posed by the Senate Judiciary Committee during her confirmation process were accurate

A federal law—28 U.S.C. 455—prohibits a Supreme Court justice from judging a case in which her impartiality can be reasonably questioned or if, while in previous government service, she served as counsel or adviser on the case or expressed an opinion about its merits.

  The Justice Department of this new “open and honest” regime has been less than forthcoming with documents related to Elena Kagan’s role in crafting the regime’s defense, but the few documents that were released seem to show us that Elena Kagan was more involved in the defense of Obamacare than she led the Congress to believe during her confirmation hearing. That being said it is too late now to do anything about her hearing because she has already been confirmed, but according to law if it is found out that she did in fact help to form the Obama regime’s defense of the law there is no way that she in good conscience should not recuse herself from the case. And that is where this investigation should be focused.

  It is critical that the House Judiciary Committee get to the bottom of this possible conflict of interest because the Constitution sets up clear separation of powers in order to guarantee that no one branch becomes more powerful than the other, and it does this through a system of checks and balances. It would appear on the surface as if Barack Obama nominated Elena Kagan to the Supreme Court simply because she helped to craft the defense of Obamacare that she will now rule on if she does not recuse herself from the case.

  And he has done this in an attempt to not only blur the separation of powers, but to combine them with the purpose of creating an all powerful central government which will be able to run rickshaw over the constitution if the regime is allowed to get away with it on this issue. If the Supreme Court rules that the government can force a person to buy a product he or she may not want, where does the power of the government stop?

  There is no doubt in my mind that this was in the back of Barack Obama’s mind when he decided to nominate her to the highest court in the land. He simply believed that nobody would notice, and even if they did notice he did not give a damn because he feels he is above the law.

  The left is up in arms about a possible conflict of interest with Justice Clarence Thomas because of a lobbying group that his wife, Virginia, started in opposition to the Obamacare law because there is the chance that this group could profit if this law is ruled unconstitutional. This would mean that Justice Thomas would also profit from the same result as well. And while Virginia Thomas is no longer affiliated with this group I understand the left’s argument on this issue, and I believe that there is a case to be made for Clarence Thomas to recuse himself from the Obamacare challenge.

  But there is still a difference between the actions of a justice’s spouse and the justice herself, and while the left is worried about the actions of Thomas’s spouse they simply do not seem to have a problem with Justice Kagan’s own actions. While there is a possibility that Clarence Thomas should recuse himself from this case, it is becoming more and more evident that Elena Kagan must recuse herself from this case. While the left tries to demagogue Clarence Thomas’s possible conflict of interest they have not asked for an investigation into the matter and that leads me to believe they do not believe what they are claiming to believe.

  It is good news that the House Judiciary Committee is investigating this matter even though there is no legally binding action that can be taken to force Elena Kagan to recuse herself; the Constitution leaves the ultimate decision to the justice herself, relying on the honesty of the person in question. Perhaps if the committee finds a direct conflict of interest–and I think it is obvious they will–the pressure applied to Justice Kagan by the Congress and the people will be too much for her to ignore.

10 Comments leave one →
  1. Otis P. Driftwood permalink
    July 7, 2011 7:47 pm

    In its own way this resembles Gunrunner, in that no one thought anyone would notice. They are trying to run stuff under the radar, and are only now learning that the radar works pretty good. And that is an excellent point about Dems worrying about Thomas’ wife yet having no problem with Kagan when it comes to potential conflicts of interest.


    • July 7, 2011 8:24 pm

      It does remind me of Gunrunner in a way; they are living on the edge and hoping that the people do not notice, it is too bad that it took the murder of Brian Terry for Gunrunner to come to light, but at least it has and we can see how nefarious this regime really is.


  2. July 7, 2011 8:36 pm

    Issa is doing one hell of a job. I wish we had more like him in Washington.


    • July 7, 2011 9:19 pm

      He sure is, especially when you take into account the obstruction that he is running into. We will have the chance to elect more like him in 2012, I just hope the American people do not let us down.


  3. July 7, 2011 10:41 pm

    so if I have this right, we are investigating someone who may have lied about their involvement with something so she qualified for the highest court in the land, and if she did, the Constitution leaves the ultimate decision to the justice herself, relying on the honesty of the person in question to recuse herself from the same issue she lied about in the first place.


    • July 8, 2011 6:21 am

      I think you’ve got that right, crazy isn’t it. The only recourse might be impeachment but that might be a can of worms best left unopened because of the precedent.


      • July 8, 2011 12:29 pm

        Steve, what do you mean? It would create a precedent that: YOU LIE, YOU GET IMPEACHED, just as it should be.


      • July 8, 2011 5:56 pm

        I guess I should have explained myself a little better. I fear that it could lead to a situation where the opposing party would begin digging up dirt on the justices’ past in an attempt to impeach them for the political gain of appointing a justice whose views are the opposite of the justice impeached. As an example, suppose the Democrats decided they needed another like-minded justice; what would stop them from investigating John Roberts or Sam Alito in the hopes of finding anything that they feel violated the “good conduct” clause of the constitution? In Kagan’s case it appears blatant, but we must remember the slippery slope. I am not defending Jagan here and if she were impeached I certainly would feel sorrow.


  4. July 8, 2011 7:00 am

    Everything will be delayed ‘gunrunning’ to boot until after the election 2012. These are all politicians, not Statesmen after all.



    • July 8, 2011 5:56 pm

      Hopefully Darrell Issa won’t let that happen and judging by his actions so far I don’t think he will.


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