Teri Kanefield @Teri_Kanefield Author, lawyer (U.C. Berkeley). An idealist who believes the American Experiment will succeed. I tweet about the law, books, politics, and history. Nov. 27, 2018 3 min read

(Thread) So why do people keep saying Whitaker’s appointment as Acting Attorney General is illegal?

Here’s an explainer.

Maryland initiated a legal challenge when it asked a court to find that Whitaker’s appointment is illegal.
The doc is here:
 http://www.marylandattorneygeneral.gov/News%20Documents/ECF_6.pdf 

1/ Maryland asked the court to stop Whitaker from assuming authority of the DOJ, or to find that Rosenstein is by law acting Attorney General (AG)

A few legal scholars, including @jedshug & @tribelaw, filed an Amicus Brief supporting Maryland’s arguments:  https://drive.google.com/file/d/0B6HcbeUDD3taVEtpUThJQzhYVGpuMWhDZmlWUW9SdjZlNWw4/view 

2/[An Amicus Brief is offered to the court by a person or group not party to the action, but with an interest in the case]
 https://www.law.cornell.edu/wex/amicus_curiae 
Facts: The day after the midterm election, Trump "caused" Jeff Sessions to submit an undated letter resigning as US Attorney General.

3/ Trump promptly tweeted that Whitaker would become the new acting US AG.

A few problems.

The Appointments Clause of the Constitution requires that “officers of the United States” be appointed by the president with advice and consent of the Senate:
 https://www.law.cornell.edu/constitution/articleii 

4/ POTUS can appoint inferior officers.

So the question is whether the US AG is an inferior or principal officer.
 https://www.law.cornell.edu/constitution/articleii 

SCOTUS precedent says that the way to determine inferior v. principal officers is whether the officer “exercises significant authority”. . .

5/ . . . and whether there is a superior officer other than the president.

An Acting AG obviously exercises significant authority and there's no superior officer other than POTUS.
Moreover, the Acting AG has the same authority as the AG, and the AG is a principal officer.

6/ Besides, even if Whitaker IS an inferior officer, there was no actual emergency requiring Trump to appoint a non-Senate confirmed AG because plenty of officers who have been confirmed by the Senate are available. Like, for example, deputy AG Rosenstein.

7/ Next we come to the Attorney General Succession Act, which states that if the AG office becomes vacant, the Deputy Attorney General (Rosenstein) assumes the duties.
 https://www.law.cornell.edu/uscode/text/28/508 

This makes sense anyway because the Deputy AG has already been confirmed by the senate.

8/ The legal scholars couldn't find an example of an Acting AG who hadn't been previously confirmed by the Senate.

They also point out that confirmation by the Senate isn’t just “etiquette or protocol.”

It’s a structural safeguard of the Constitution.
 https://drive.google.com/file/d/0B6HcbeUDD3taVEtpUThJQzhYVGpuMWhDZmlWUW9SdjZlNWw4/view 

9/ So it seems like a no-brainer that Rosenstein (or another confirmed officer of the DOJ) should be Acting AG, right?

The DOJ—arguing that Whitaker's appointment is legal—claims that the Federal Vacancies Reform Act (FVRA) is controlling.
 https://www.gsa.gov/governmentwide-initiatives/presidential-transition/legislative-overview/the-federal-vacancies-reform-act-of-1998 

10/ The FVRA says if an officer position is vacated, anyone who has been at the department longer than 90 days can fill the office.

The problem is that the FVRA applies only when there's no “statutory provision expressly designating" an officer or employee to perform the duties.

11/ In the case of the AG position becoming vacant, there IS a statutory provision: The AG Succession Act (which designates Rosenstein)

Fifteen states filed a separate amicus brief, taking Maryland’s side in the dispute.

12/ The 15 states support Maryland’s arguments about the extraordinary power that the US AG exerts over the states, and similarly argue that the FVRA doesn’t apply in this case:  http://oag.dc.gov/sites/default/files/2018-11/Multistate-Whitaker-Amicus-Brief.pdf 

The scholars, in their brief, explain why it's so "troubling" that . . .

13/ . . . Trump "caused" Sessions to step aside and then immediately appointed a person who has never been confirmed by the Senate: It’s a way for the president to “contrive an end-run around” Constitutional safeguards.

14/ I expect the court to agree with the scholars and the 15 states and find that
Whitaker's appointment was illegal — and Trump must be stopped from finding ways to sidestep constitutional requirements.


You can follow @Teri_Kanefield.



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