The Justice Department must disclose all documents relating to any work Supreme Court Justice Elena Kagan
may have been involved in regarding the formulation of the legal defense for President Barack Obama’s signature health care law so a fair assessment of whether she should step aside from the case can be made, Sen. Mike Lee, R-Utah, said.
Lee’s comments came in a question and answer session following his speech to the Federalist Society’s National Lawyers Convention. Before ascending to the Supreme Court, Kagan had served as the nation’s solicitor general, responsible for representing the federal government before the Supreme Court. The office had worked on strategy for defending Obamacare, but Kagan has maintained she did not play any substantial role and should not remove herself from considering the case should in come before the high court.
“I haven’t seen enough to be able to make that assessment,” Lee said when asked if she should recuse herself. “I think it is a legitimate question that is why I asked Attorney General (Eric) Holder whether he intends to comply fully with the requests for documents submitted by the House Judiciary Committee a week ago today.
“I think this is immensely important because as you know Justice Kagan served as solicitor general prior to going on to the Supreme Court and the solicitor general is responsible not just for handling litigation in which the United States is a party before the Supreme Court but also in managing the federal government’s efforts in all appellate litigation everywhere and frequently the solicitor general is brought in to consult on issues that are either pending in lower courts or in some cases even litigation that is contemplated but not yet field. So I think it’s important that the attorney general respond to this.”
Lee said that Holder, in response, maintained that Kagen has been “walled off” from the issue and it’s not a problem. Lee said he then told him, “If that’s the case Mr. Holder I’m sure you will feel very comfortable responding to our request for documents.”
The issue of recusal on Obamacare has become a key sticking point between the right and the left because both sides fear the case could be decided by a single vote. Conservatives have been pressing for Kagan’s recusal for her previous work while defenders of the law are pressing for Justice Clarence Thomas to recuse because of his wife’s work with groups that oppose the law. The decision to recuse is generally up to the individual justice. While the court has not yet decided to hear a case concerning the constitutionality of the law, it is widely expected to soon.
In his formal address to the Federalist Society, Lee focused on the role of the Constitution in the formation of the U.S. government and limited government. Lee said he refused to believe the power of Congress goes so far as to require citizens to buy health insurance and where to go to the doctor and how to pay for it, adding, “I refuse to concede that Congress’ power goes that far.”
“We in the political branches of government who are died in the wool advocates of federalism need to stick to federalism,” he said. “Federalism is the answer not just because it leads to right results but because it is the right result and it is the law.
"At the end of the day it may be that we’ve simply allowed the political branches to get away with this too long. They haven’t’ had to answer these difficult questions. As Benjamin Franklin was often quoted as saying, ‘they will cheat without scruple who can without fear.’ As long as members of Congress aren’t ever asked the question, even if it’s only by a small handful of their constituents where do you get this power to vote for bill X or resolution Y. As long as they don’t feel that pressure they’re not going to restrain their own power.”
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