Posted on 11/14/2018 7:34:51 AM PST by 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.
(Excerpt) Read more at wsj.com ...
The "advise and consent" role is laid out in the Appointments Clause of the Constitution for principal officers (generally understood to mean ambassadors and cabinet members who report directly to the President) and inferior officers, but this clause says Congress -- through statutes -- may waive the advise/consent requirement for inferior officers (only).
The Vacancies Act could be considered a blanket waiver for Senate approval for temporary "acting" appointments to those offices that would be considered inferior officers under the Appointments Clause. Even if Congress intended it to apply to principal officers like the Secretary of State and the Attorney General, that would not be constitutional.
This important distinction between "principal" and "inferior" officers in the Executive Branch is what is at the root of this question about the legitimacy of Whitaker's appointment.
Whittaker does not qualify as a “principal officer” under the US Constitution, his appointment is temporary and covered by The Vacancies Act of 1998.
There is nothing to prevent PDJT from nominating Whittaker as the AG during the next 90 days either.In that case he would be in line for Senate approval.
” ...but this clause says Congress —through statutes— may waive the advise/consent requirement for inferior officers (only). “
So in your reading that precludes temporary/interim appointments to only those previously confirmed?
Even so, if the legislators who enacted the Vacancies Act intended to exclude “principal officers” I would hope and expect that they would have said so, they are mostly all lawyers after all.
The Vacancy Act has not been ruled unconstitutional and thus this is only your contention.
I’m sorry but there appears to be incoherence in your argument. Are you saying that the Senate by virtue of a previous advise and consent confirmation grants a Secretary of HHS by transference a Constitutional confirmation to be the Secretary of Defense?
Al the liberal aholes and so-called law professors are full of crap and they know it. They are just blowing smoke up the liberals/progressives collective butts as a cover for their being stupid, ignorant of the law, and biased, and the leftist media falls for it like a two-bit whore going after a $20 bill on the ground.
Any and all lawsuits on this issue will be either thrown out or ruled as irrelevant, wrong law application, etc.
No wonder we have so many Avenatti’s and now Ted Olsen, etc.
Our law schools have too many reds and pinkos teaching there and they are turning out little Marxist attorneys who know nothing about “real law”, only ‘social justice’ law.
Good luck with that.
The temporary nature of the appointment carries no weight in the constitutionality of it. Yes, it's covered by the Vacancies Act. The question is whether the Vacancies Act is constitutional on this particular point. It's a very uncertain area, and based on previous legal challenges related to various appointments I'd say it's not likely to survive a Supreme Court challenge.
You give them too much credit.
At least in an "acting" capacity under the provisions of the Vacancies Act -- yes. That's why Secretary of State Mike Pompeo's name had surfaced occasionally as a possible replacement for Sessions in recent months.
Really? A SecHHS but not an unconfirmed UnderSecDef? Unreasonable.
And how could Rosenstein fill DOJ ?
That may be true but they do have a knack for detail.
Maybe so.
As Clarence Thomas so eloquently stated on this subject in his 2017 opinion in the NLRB case:
"We cannot cast aside the separation of powers and the Appointments Clause’s important check on executive power for the sake of administrative convenience or efficiency. That the Senate voluntarily relinquished its advice-and-consent power in the [Federal Vacancies Reform Act] does not make this end-run around the Appointments Clause constitutional."
Both Chuck Schumer and Nancy Pelosi voted in favor of the Federal Vacancies Act of 1998. The constitutionality of the law was probably the last thing on their minds.
Was Justice Thomas ruling on a temporary appointment?
AND
You haven’t answered whether or not Rosenstein could Constitutionally fill in at DOJ.
If he could, that puts a pin in your argument
I'm not sure if the NLRB case involved what was intended to be a temporary appointment or a permanent one that was being presented as a "temporary" one, but Thomas' decision was directed at the Vacancies Act -- which involves temporary appointments.
Until the Vacancy Act is ruled unconstitutional (not saying it isn’t) your contention is still only your opinion.
I agree with you 100%. I've even said I believe it is "legal" but not constitutional (because it hasn't been subject to a court challenge). What makes this relevant is that Maryland has filed a lawsuit over it, so there is a legal challenge in the works right now.
“legal” but not constitutional because it has not been subject to a court challenge,
It is legal and constitutional until decided otherwise.
That’s exactly right! :-)
Let them “debate” like they always do, repeating the same idiocy over and over and over.
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