About Whitaker's appointment
Posted: Thu Nov 08, 2018 1:52 pm
I'm starting to see some prominent commentary to the effect that appointing Whitaker as Acting Attorney General is unconstitutional. It's actually an open question. I'm pretty sure Justice Thomas, for one, would agree with the critics. I don't know about the rest of the Court.
Here's the issue: Whitaker was Sessions's chief of staff. Under the Federal Vacancies Reform Act, that may (subject to a caveat I'll discuss below) make him eligible to be appointed. But there is a body of thought that says anyone serving as acting head of a government department must, under the Appointments Clause of the Constitution, be a person who has been confirmed by the Senate. My bottom line here is that there's a real argument to be made here, but I certainly wouldn't say Donny is out of line for appointing someone that Congress has said he can appoint.
Now that caveat. There seems to be a fairly clear conflict between two different statutes. In addition to the general rule stated by the Federal Vacancies Reform Act, there's a separate statute that establishes the order of succession for the Department of Justice. I understand that it's not at all clear which one of those statutes should prevail. Once again, this is an issue where I wouldn't say Donny is out of line for going with the statute he prefers, even if the courts end up disagreeing. --Bob
Here's the issue: Whitaker was Sessions's chief of staff. Under the Federal Vacancies Reform Act, that may (subject to a caveat I'll discuss below) make him eligible to be appointed. But there is a body of thought that says anyone serving as acting head of a government department must, under the Appointments Clause of the Constitution, be a person who has been confirmed by the Senate. My bottom line here is that there's a real argument to be made here, but I certainly wouldn't say Donny is out of line for appointing someone that Congress has said he can appoint.
Now that caveat. There seems to be a fairly clear conflict between two different statutes. In addition to the general rule stated by the Federal Vacancies Reform Act, there's a separate statute that establishes the order of succession for the Department of Justice. I understand that it's not at all clear which one of those statutes should prevail. Once again, this is an issue where I wouldn't say Donny is out of line for going with the statute he prefers, even if the courts end up disagreeing. --Bob