Yesterday, I addressed arguments that the appointment of Matt Whitaker as Acting Attorney General violates federal law. The arguments based on the Federal Vacancies Reform Act, in my view, are unpersuasive. As I noted, however, there remains a different and more fundamental question of whether the Act itself is unconstitutional by allowing an official without Senate confirmation to assume, even temporarily, the office of a “principal officer.” If standing can be found to challenge the Act on that basis, the constitutional arguments are compelling. The constitutional question could be difficult to litigate if a nomination is made in January. However, these constitutional concerns again raise the logic of firing Jeff Sessions immediately after the election as opposed to having him serve until the confirmation of his successor. Nevertheless, this is an issue that is somewhat untested in the courts and challengers would need to establish standing as well as raise a “ripe” issue to argue that Whitaker is lawful under the Act but the Act is unconstitutional under Article II.
It is not the entire Act that would be challenged. The first two options both involve confirmed officials being designed as acting heads of the department. However, Subsection (a)(3), states “notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if (A)during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and (B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule”
There has been a long debate about the impact of the Appointments Clause of the Constitution on such appointments. Under Article II, Section 2, Clause 2, a president must secure the “Advice and Consent” of the Senate for non-inferior or “principal officers.” The clause specifically mandates such confirmation for “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” The clause then allows for a more lenient rule for inferior officers: “but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
The position of the Attorney General is clearly that of a principal officer — requiring confirmation as a prerequisite for the exercise the powers of that office. Under the Act, Whitaker can carry out those functions without confirmation for 210 days and then gain another 210 days if the nominee fails to secure confirmation. In the meantime, a federal agency is being run by someone without confirmation (Whitaker’s earlier confirmation for U.S. Attorney would not count).
Ironically, it was the Democrats who resisted this argument recently in the challenge to both Mueller’s authority but also Obama appointments. I have been skeptical of this argument against Mueller by Steven Calabresi in the Wall Street Journal under the Appointments Clause because he is reporting to and under the supervision of a principal officer. Nevertheless, this remains a rather murky area of delineation under Article II.
In this case, Whitaker will be performing at the highest official in the Justice Department, including potentially playing a key role on matters of succession and other vital functions.
The selection of Whitaker unnecessarily triggered this constitutional question, which in turn fueled speculation of why the President would take on such water for a relatively unknown individual. Whitaker is also controversial in his statements suggesting that we should appoint judges with Christian values and his questioning of the qualifications of secularists. Trump could have simply followed tradition and appointed Rod Rosenstein or turned to his Solicitor General. He didn’t.
In a fight, Trump could well lose conservatives on this one like Justice Clarence Thomas who as written about the importance of such confirmations under the Constitution. The question is the likelihood of a fight if Trump moves on a nominee in the next few weeks. As with Emoluments and birthright citizenship and other issues, Trump appears intent in answering long unresolved constitutional debates. This was was entirely unnecessary and his critics have solid ground to question the statute under the plain meaning of Article II. Thus, Whitaker is lawful under the federal law but there remains a serious question of whether the federal law is constitutional.