SMITH: Kagan and Obamacare - still no answers

Even before he became President, Barack Obama promised the American people his would be the most open, transparent administration in history. Unfortunately, his administration’s record doesn’t match his campaign rhetoric. Now, on the eve of one of the most important Supreme Court arguments in our nation’s history, the stonewalling that has become the hallmark of the Obama administration may call into question the legitimacy of the court’s ultimate decision.

The court is about to hear arguments over whether the president’s signature political achievement, the health care reform law, is constitutional or not. The issue has split federal judges throughout the country, with some upholding the law and others striking it down. At the heart of the case is whether Congress has unlimited power to control people’s lives or whether the Constitution places limits, enforced by the courts, on congressional and presidential power. Those arguments will be held March 26 before a panel of nine justices that includes the president’s former chief lawyer to the Supreme Court, the newest justice of the court, Elena Kagan.

The Affordable Care Act became law on March 23, 2010, and legal challenges were filed almost immediately. At the time, Justice Kagan was serving as the administration’s chief legal adviser on challenges to federal law, especially Supreme Court challenges. It would have been her job to consult with and advise the administration on how best to defend the new law.

Justice Kagan was nominated to the Supreme Court on May 10, 2010. What Congress and the American people want to know is what role then-Solicitor General Kagan played prior to her nomination.

The House Judiciary Committee, along with its Senate counterpart, is the legislative guardian of our Constitution. As chairman of the committee, I have sought to make public the facts relating to whether Justice Kagan should participate in the Supreme Court’s consideration of this important subject. For eight months, I have sought information from the Justice Department regarding what, if any, role Justice Kagan may have played in discussions about the constitutionality and prospective litigation over the president’s health care law.

Since July 2011, I have written Attorney General Eric H. Holder Jr. on five occasions requesting that the Justice Department provide relevant documents and emails and produce witnesses for interviews. But instead of working to quiet questions by disclosing the facts about Justice Kagan’s prior health care reform-related work, the department has been stonewalling Congress, fueling speculation that there is something to hide.

The rules regarding recusal are clear. The current recusal law, enacted in 1974, bars justices from hearing certain cases in which they were involved as government lawyers. If Justice Kagan participated in legal or procedural discussions regarding the health care law challenge, she should be recused from ruling on the case. The intent of recusal is to prevent any personal or professional bias that may impact a justice’s decision.

The administration claims that Justice Kagan was walled off from discussions and therefore is eligible to hear the case. But emails and documents released last year bring the administration’s assertions into question.

For example, the administration released a chain of then-Solicitor General Kagan’s emails dated March 21, 2010, under the subject line “Health care litigation meeting.” There also is material from Golden Gate, a case with a “possible nexus to the health care bill,” in which Justice Department lawyers have acknowledged that Justice Kagan “substantially participated” when she served as solicitor general.

If Justice Kagan received emails discussing a meeting on possible litigation over Obamacare, Congress and the American people have a right to know what was in those emails.

But the administration has refused to release the content of the March 21 email chain because it “includes a DOJ attorney’s thoughts on a legal issue … regarding the expected [health care] litigation.” Saying these emails should be withheld because they include legal deliberations over the health care law directly contradicts the attorney general’s claims that Justice Kagan was not involved with discussions on the topic.

Instead of honoring its obligation to cooperate in congressional oversight, the department refuses to provide the requested information. At a hearing in December, I questioned Mr. Holder until he finally conceded the department has failed to assert any legal privilege justifying its noncooperation.

The department has given no good, justifiable reason to deny this congressional request. The administration still refuses to release the relevant documents. This perpetual stonewalling is not just bad governing; it proves that the president’s campaign promises of openness and transparency were empty.

There is always tension between the Justice Department and its congressional overseers. That tension is built into the separation of powers. What is especially problematic in this instance is that the department’s intransigence is harming the judicial branch.

The Justice Department needs to air the facts to end the speculation. If it doesn’t, the resulting suspicions about the court’s ultimate ruling may harm and weaken the court as an institution. That is a price we should all hope the attorney general is unwilling to pay. He still has time to produce the information on whether Justice Kagan had anything to do with the health care litigation when she was at the department, but that time is quickly slipping away.

Rep. Lamar Smith, Texas Republican, is chairman of the House Judiciary Committee, which oversees the Justice Department and federal courts.

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