Matthew Whitaker Can Legally Serve as Acting AGl, JD Says

WSJl ^ | 11/14/2018 | Sadie Gurman

[CaptainK]

Trump’s DOJ says Whitaker can serve in acting role without Senate confirmation.

Matthew Whitaker can properly serve as acting attorney general without Senate confirmation, the Justice Department said in a legal opinion released Wednesday, though the document is unlikely to end the debate over Mr. Whitaker’s installation as the country’s top law-enforcement officer.

[AndyJackson]

The constitution states:

[B]y and with the Advice and Consent of the Senate, [the President] shall appoint 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 position of Attorney General is not established by the Constitution. It is established by law [8 U.S. Code § 503 to be precise], and the Congress, under this clause, BY LAW can establish the requirements for advice and consent. Under the Vacancies Act It has elected to forego advise and consent for acting appointments of current senior employees for a limited term (under 210 days).

Both the constitution and the law are very clear.

[A strike]

So there is no Attorney General with any authority at all until confirmation?
Again, where did you get THAT?

[Alberta's Child]

1. Under the DOJ succession protocol, the Deputy AG fills the AG post until a successor to the AG is confirmed.

2. The President has the discretion to override the DOJ succession protocol and appoint someone else as AG who has already been confirmed by the U.S. Senate for another post. Secretary of State Mike Pompeo has been mentioned as a possibility in recent months.

Both of these scenarios allow the AG position to remain filled continuously, while also meeting the constitutional requirement for the AG to be a person confirmed by the U.S. Senate. Appointing Mike Whitaker to fill the role on a "temporary" basis allows the AG position to remain filled continuously but clearly does not meet the requirement for Senate confirmation.

Why do some Freepers have such a hard time understanding this?

[A strike]

” Under the Vacancies Act it has elected to forego advise and consent for acting appointments of current senior employees for a limited time “
So by your own words Whitaker’s appointment is legitimate.

[Sam Gamgee]

Liberals going nuts in...

[Captain Jack Aubrey]

Now, all he has to do to expand Mueller’s jurisdiction to include Hillary’s Russian collusion, FISA fraud and Clinton Foundation’s pay-for-play and watch the rats jump off the ship.

[AndyJackson]

Not by my words. By the words in the Constitution and the words in the law that Congress passed governing how it will deal with temporary appointments to otherwise confirmed positions that Congress create by law under that clause of the constitution.

IOWs yes, the appointment is legitimate.

[arrogantsob]

Fending off the Goebbelsmedia is the first task towards accomplishing any of those goals.

It has been remarkable to watch him embarrass it, humiliate it, toy with it.

[A strike]

” The position of Attorney General is not established by the Constitution. It is established by law [8 U.S. Code 503 to be precise], and the Congress, under this clause, BY LAW can establish the requirements for advice and consent. Under the Vacancies Act It has elected to forego advise and consent for acting appointments of current senior employees for a limited term (under210 days).”

So by your very words the Whitaker’s appointment is legitimate.

-or-

Are you saying that the Vacancies Act is unconstitutional; which would be interesting considering that the Congress established the office of Attorney General to begin with.

[Alberta's Child]

That's an interesting argument that could carry some weight. However, we have to recognize that NONE of the specific Presidential appointees listed in the Appointments Clause was established by the Constitution. The Judiciary Act of 1789 established the judiciary, the AG and other positions. Since that's the case, the Appointments Clause wouldn't make any sense if it is interpreted the way you did.

I'm suggesting that the Vacancies Act as a whole is NOT unconstitutional, but the specific provision that relates to "principal officers" of the Executive Branch offices probably is. That was the basis of Clarence Thomas' opinion in the NLRB case in 2017.

[A strike]

” The Judiciary Act of 1789 established the judiciary, the AG and other positions. “

---

But you just stated that the office of the Attorney General was created by the Congress.
If so, what could possibly be the reason for the Vacancy Act? Does it apply to appointments not requiring advice and consent? No logic there.

[A strike]

Were the original principal officers appointed Secretary of State, Secretary of War legitimate before confirmation?

[1FreeAmerican]

So sorry Mr. Head but I forgot the sarcasm tag on that one.

[Defiant]

I must admit that my info is based upon a legal analyst on a news show, I don’t recall which, stating that the act was upheld by the Supreme Court. Next time I am at my westlaw terminal, I will try to remember to check it.

The NLRB case is very distinguishable. That appointment was overturned because Obama misused the recess appointment power, if I remember correctly.

[Alberta's Child]

Maybe the Vacancy Act was passed because the Federal bureaucracy had gotten so large that confirmation processes were intruding on the normal business of the Senate too much.

We're only discussing the part of the Vacancy Act related to temporary/"acting" appointments. Another important element of the law was that it directed Federal agencies to establish internal succession plans of their own. This provision was mostly ignored for a couple of years, but it took on an added sense of urgency after 9/11.

[Alberta's Child]

I’m sure they were considered legitimate. Keep in mind that the U.S. governing structures didn’t just start at “Day 0” when the Constitution was ratified. The original 13 states previously operated under the Articles of Confederation from 1781 to 1789, so there was some degree of continuity with the “old” leadership when the Constitution was ratified by 9 of those 13 states.

[Alberta's Child]

That appointment was overturned because Obama misused the recess appointment power, if I remember correctly.

You're exactly right. The Federal Vacancies Act only came up because that was a key point in Sotomayor's dissenting opinion. Thomas wrote a separate concurring opinion to refute her arguments about the legitimacy of the NLRB appointments under the Vacancies Act because he thought it was important to have this all on the record in those proceedings.

As I said in another post, my point isn't that the Vacancies Act itself in unconstitutional ... just the application of the Vacancies Act to "primary officers" who require Senate confirmation.

[ridesthemiles]

The same words they do NOT understand in the 2nd Amendment.

[A strike]

If the Vacancy Act pertained only to those Officers not requiring advise and consent, what would be it’s necessity?

Also, what if President Trump allowed Rosenstein to fill the post for only one hour. Would that be Constitutional?

[Candor7]

Yes , the temporary appointment is valid. No constitutional issue exists, the statute applies:

Federal Vacancies Act

5 U.S. Code § 3345 - Acting officer

(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—

(1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;

(2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or

(3) 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.

https://www.law.cornell.edu/uscode/text/5/3345