Posted on 11/14/2018 7:34:51 AM PST by CaptainK
There is no establishment of “acting” or “temporary” appointments in the constitution either. The actual wording of the constitution is:
he shall nominate, and by and with the Advice and Consent of the Senate, 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: 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 obvious question is: What is an "acting" administrator. It is easily argued that they are "inferior", and thus can be defined by law. Existing law allows the president to appoint such officers.
"Acting" administrators are simply not mentioned in the constitution, but are clearly necessary for many functions of the government, including acting department heads. There may even be a question if a "Department Head" is actually considered to be an "Officer" as defined by the constitution, since the departments are defined by law, not by the constitution.
“It’s a valid legal argument, but the bigger question is whether the Federal Vacancies Act is constitutional as it applies to “principal officers” of the Executive Branch under the Appointments Clause of the U.S. Constitution.”
Think that Acting AG Whitaker as a former US Attorney who was approved in that role can continue to act as he has in the capacity as Chief of Staff AG and Acting AG.
There’s a time limit to his acting role but IMHO, there’s not a chance he is bumped off in court for holding this role. It just won’t stick no matter how the Rats cry.
Soon they will have plenty to cry about.
WSJ pay wall. Don’t even bother to click.
“They are really scared of this guy aren’t they?”
Apparently, Acting AG Matt Whitaker terrifies them. He’s not under their thumb it appears they have nothing on him either.
Expect the biggest howling banshee cries in human history. It’s gonna be great.
1. A Presidential appointee who reports to the President directly and not through another Federal appointee is clearly NOT an "inferior" officer. A Deputy Secretary of the Interior, for example, is appointed by the President but reports to the Secretary of the Interior and therefore can be considered an "inferior officer."
2. A Presidential appointee whose duties are established by Federal law is not an "inferior" officer.
The U.S. Attorney General -- regardless of whether he's functioning in a permanent or "acting" role -- would not be considered an "inferior officer" by any measure.
Democratic Party=Lawless Party..they have more lawyers than voters, so they will litigate forever.
Let’s be serious, people. Would anyone here on FR believe that Barack Obama could have appointed Merrick Garland as an “acting U.S. Supreme Court Justice” while his nomination was blocked in the Senate? LOL.
At least by your measure. Other respected legal minds differ.
“The U.S. Attorney General — regardless of whether he’s functioning in a permanent or “acting” role — would not be considered an “inferior officer” by any measure. “
If an Acting Attorney General has fewer powers than an Attorney General, he is an inferior officer.
Whittaker has fewer powers than an AG, such as the signing of FISA Warrants. He is inferior to an AG.
Done deal.
“I don’t think Whitaker’s appointment is constitutional”
Why?
Well, the statute doesn’t exempt him from the confirmation process, it simply allows him to begin serving temporarily while the process is pending.
Where did you get this?
If he can't sign FISA warrants then he's not even the acting AG. LOL.
“Would anyone here on FR believe that Barack Obama could have appointed Merrick Garland as an “acting U.S. Supreme Court Justice” while his nomination was blocked in the Senate?”
To be serious would require not confusing a lifetime appointment as an SC Justice with an Acting position where the holder as here (Matt Whitaker) held a similar role as a qualified US Attorney.
So, IMHO, the analogy falls on its face. What else?
He’s not making an appointment to an office. He’s saying who can run the place temporarily in light of a resignation. As I understand it, the legal issue has been reviewed by the Supreme Court and has been found Constitutional. Have you checked to see if this is the case, or read the reasoning of the Court in its decision. Seems to make sense to me; someone has to run the place during the many months that confirmations can take.
Please cite some of them. U.S. Supreme Court Justice Clarence Thomas agrees with me.
I can send you a link to bypass the pay wall.
Someone can run the place under the DOJ rules of succession that have been in place for years. That would be Deputy U.S. Attorney General Rod Rosenstein. That's the whole point of having those succession rules in the first place.
President Trump chose to override the DOJ succession rules. That's his right as the President of the United States. That doesn't mean he can appoint ANYONE to a role that requires Senate confirmation, though.
I have no problem with what President Trump has done here, because the move is technically "legal" even though it is clearly unconstitutional in my mind.
President Trump will almost certainly lose if a challenge to this appointment goes all the way to the U.S. Supreme Court.
P.S. -- The Supreme Court ruling against a similar appointment by Obama in that NLRB case was a 7-2 decision.
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