OLC Declares Whitaker Appointment As Constitutional

The Justice Department’s Office of Legal Counsel is issued an opinion that states that the appointment of  Matthew G. Whitaker as acting attorney general is in fact constitutional.  I previously wrote that I believe that the federal Vacancies Reform Act does allow for the appointment. However, I have long viewed the Act itself as constitutionally questionable in its provision for a non-confirmed individual taking over an agency.  Moreover, I recently wrote how this move could present a novel way to undermine the position of Special Counsel Robert Mueller.  One fact revealed in the OLC memo is that, despite media suggestions that Whitaker was an impulsive move by President Trump, there was a request for review of legality of a Whitaker appointment before Sessions was pushed to resign.

The 20-page memo cites past practice and the 1998 Vacancies Reform Act as support for its position.  It notes that “As all three branches of government have long recognized, the president may designate an acting official to perform the duties of a vacant principal office, including a Cabinet office, even when the acting official has not been confirmed by the Senate.”  It  notes that Trump has made such an appointment six times President Barack Obama did it twice. President George W. Bush also made such an appointment.

For the reasons stated earlier, I do not find that analysis to be particularly compelling.  There remains the striking conflict with U.S. Const. art. II, § 2, cl. 2.  The plain-meaning of the appointments clause of the Constitution mandates that high level officials in the executive branch, called “principal officers,” require a presidential nomination and Senate confirmation. It seems odd that all of that is moot if Congress may allow a president to simply appoint, without confirmation, other “inferior officers,” as they see fit.

This is why the usual approach is to follow federal law on succession and select the Deputy Attorney General. The Attorney General Succession Act, 28 U.S.C. § 508, currently provides:

“(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.

(b) When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.”

This provision is at the heart of the recent challenge to Whitaker’s authority in Maryland, though the Act speaks of how a Deputy Attorney General “may exercise” such authority — not that it is the exclusive succession option. For that reason, I previously maintained that the White House could rely on the Federal Vacancies Reform Act.  The OLC reaches the same conclusion that the Act “remains available” as an alternative for an appointment.

The OLC takes a novel reading (against based heavily on historical practice) that, while the Attorney General is a “principal officer” requiring confirmation, an acting Attorney General is an “inferior officer” because he is only temporarily in the office. I have long been a critic of such historical practice arguments being used as interpretive devices against the plain meaning of the Constitution.  However, as noted earlier, is an unresolved issue and the OLC opinion makes for an interesting and, at points, a compelling read.

Here is the OLC opinion: OLC-Opinion-on-Matthew-Whitaker-Appointment