Videos: Republicans Finally Get Tough With Obama

After months of stonewalling, ethical violations, and blatant defiance of the Constitution, could it be that Republicans have finally gotten tough with Barack Obama? They are stepping up to demand the recusal of Elena Kagan in the pending health care case soon to be heard by the Supreme Court, the firing of Eric Holder over Operation Fast and Furious, and the return of their Constitutionally delegated authority to wage war.

Senate Republican leaders Mitch McConnell, Chuck Grassley, Mike Lee, and Jon Kyl signed a letter to Attorney General Eric Holder on November 18 calling him to disclose all information about Elena Kagan’s involvement in formulating the administration’s legal case defending health care reform, often called ObamaCare, as they believe it present a clear conflict of interest that legally requires her recusal from the case.

The letter takes Holder to task for stonewalling their investigation to date:

“Unfortunately, your Department has rejected all Congressional oversight requests for information about her role in the Obama Administration’s defense of this law. You recently told the Senate, incredibly, that you were not even aware of Congressional requests on this topic, and that your Department handled her duties as relates to such matters in a way that is belied by the facts, namely that you physically removed her from all meetings discussing litigation,” the senators told Holder.”

Federal statute 28 U.S.C. 455 states that a judge must step aside “in any proceeding in which his impartiality might reasonably be questioned” or in which he (or she) “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

To assess whether Kagan met this standard, House Judiciary Chairman Lamar Smith, at the urging of 49 members of Congress, requested all documents related to the services Kagan rendered as then-Solicitor General. Attorney General Holder allowed the inquiry to languish for four months. On Octobery 27, Assistant Attorney General Ronald Weich balked, saying the DoJ would provide nothing to the “unseemly” request.

Earlier this month, Holder testified:

“Well, I can tell you that certainly one of the things that we did while she was solicitor general was to physically–physically, literally–move her out of the room whenever a conversation came up about the health-care reform legislation,” said Holder. “I can remember specific instances in my conference room where, when we were going to discuss that topic, we asked Elena, Justice Kagan, to leave and she did.”

However, Kagan admitted, “I attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred.”

In today’s world, one need not be physically present in the room to participate in the discussion.

Kagan insisted her role was not “substantial,” but as the senators point out federal law “does not require the government official’s past participation in that same matter to be ‘substantial’ (as determined by the self-same government official).”

An e-mail trail since uncovered by Judicial Watch proves Kagan was indeed involved in the administration’s legal arguments to defend its signature legislative accomplishment. Neal Katyal, then Kagan’s Deputy Solicitor General, wrote in an e-mail, “Elena would definitely like OSG [the Office of Solicitor General] to be involved in this set of issues…we will bring Elena in as needed.”(Emphasis added.)

However, the administration has withheld many more documents, including seven e-mails written from March 17-21, 2010. Kagan was copied on three e-mails that discuss “what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” Another four dealt with “expected litigation” against the health care law.

Elena Kagan wrote one of the four being withheld.

Based on this record, the senators write, “it is apparent that she herself enthusiastically supported this legislation as a member of this Administration [sic.] which is now defending it.”

Trying to anticipate GOP success, the Left has doubled the ante, demanding two Originalists be forced from the court. Al Sharpton wrote in The Huffington Post last week that both Clarence Thomas and Antonin Scalia must recuse themselves, as well, although neither expressed any opinion nor lent their assistance to those trying to overturn the law.

The law is clear. Kagan must step down, and Republicans are creating as strong a case as possible to force her to do so. Of course, if they had this courage when she was nominated for the High Court, this rear-guard action would be unnecessary.

Because of his role in stonewalling on Kagan, the Black Panther voter intimidation case, and Operation Fast and Furious, the GOP is intensifying pressure on the administration to fire Attorney General Eric Holder. Presidential candidates Michele Bachmann and Rick Perry join 51 other Congressmen in calling on Holder to quit or resign. Any call for the Obama administration to comport itself well will fall on deaf ears if unaccompanied by action.

Thankfully, the House Republican enforcer, Darrell Issa, sent a clear message to Barack Obama this weekend: Fire Holder or you are going down. “If the [Obama] administration continues to have full confidence in a failed administration by Eric Holder and Lanny Breuer, then ultimately the administration is going to be doomed,” Issa said.

Obama understands nothing but force and does nothing unless compelled. Issa must have the courage to stand his ground and run headlong into presidential opposition if necessary.

Finally, Sen. Rand Paul, R-KY, has introduced an amendment to the Defense Authorization bill to reclaim the war-making power for Congress. Presidents for a generation have steadily usurped this privilege, none as audaciously as Barack Obama in launching the Libyan war earlier this year. The younger Paul stated on the House floor:

On several occasions this year, Congress has been ignored or remained silent while the president committed our forces to combat. It is my intention to urge Congress to reclaim its constitutional authority over the decision to go to war, or to end a war – it is one of the body’s most important powers. It is right that we wrest it back from a President who has shown he cannot be trusted to obey the Constitution or powers prescribed to Congress in it.

If his amendment survives, it will reinforce the Founders’ view of Congressional power and Constitutional order.

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American Family Radio’s Crane Durham and I discussed the Kagan recusal in June.