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.