Posted on 11/16/2018 8:15:01 PM PST by tcrlaf
In a highly unusual move, lawyer Tom Goldstein asked the US Supreme Court on Friday evening to declare Deputy Attorney General Rod Rosenstein as the acting attorney general, instead of Matthew Whitaker who currently holds the job.
Goldstein also represented Maryland's Attorney General in a similar court filing at the district court level earlier this week. Goldstein's motion was filed in connection with a gun rights case that is before the Supreme Court as a petition for a writ of certiorari, meaning the nine Justices will meet in conference at a date still to be determined to decide whether to hear it. The case is Barry Michaels v. Whitaker, which was automatically renamed from Michaels v. Sessions following Whitaker's appointment. Since the attorney general is charged with enforcing all federal law, including the statutes in this gun rights case, the motion argues that the identity of the attorney general is imperative, and the rightful acting attorney general is Rod Rosenstein.
(Excerpt) Read more at cnn.com ...
Not exactly.
While I think the Whittaker "acting" appointment is perfectly legal and in order, senior positions that require Senate confirmation do not really conform to "the boss makes the choice".
Andrew Johnson was impeached and almost convicted over an issue like this (he fired a Senate-confirmed cabinet member over the objections of the Senate), so it will be interesting to see how this plays out.
If a majority on the Court want Trump removed, it is possible that they will hear this case and rule for Rosenstein.
I am as pro-Trump as anyone here, as you can see from my posting history. But there are lots of serious people, swamp-dwellers for sure, but serious, who would be happy to see him go as long as their fingerprints were not on the murder weapon.
He wants to defend the swamp, more than showing Trump who is boss.
I don't mean, defend it for being great, or "make the swamp great again". I'm sure McConnell knows that on some level, the swamp is indefensible.
But it's natural to get your back up when an outsider shows up and announces that he wants to burn the place where you've spent your adult life to the ground.
The "swamp" is how things get done. The Congress is an illusion, the swamp is real.
McConnell probably feels, "yeah the swamp is bad, but it's OUR swamp", or something like that.
The founding fathers were smart in separating the branches.
An Acting officer, under the law used to appoint Whittaker, is not eligible for a permanent appointment while serving.
He would have to resign, and be appointed after his resignation took effect.
This is why Montana and WV were so damn important - and don't forget, we still have to win Mississippi.
If Trump thinks he can use the letter of the law (resign, then appoint) to defy the spirit of the law (no Acting officials converted to permanent) - I think a 53-47 or 52-48 Senate is going to have a problem with that.
That's not the issue.
The law that creates and funds the Department of Justice stipulates rules for vacancies.
It is possible - just barely - that this law requires the most senior Senate-confirmed official at DOJ (Rosenstein) to act as AG until Trump nominates, and the Senate confirms, a replacement.
The Court would not force Trump to appoint Rosenstein. The Court MIGHT declare that, under the law, Rosenstein is AUTOMATICALLY Acting AG.
Yep, this is going to be a really important ruling. You have Fed Vac Act on one hand saying the Pres can do this and yet, you have the constitution. One will be voted to not be legal for AG appointment.
What ever happened with Dens and Repubs meeting with Rosenstein that got cancelled. No reschedule of that. Odd. Makes you wonder what the hell happened that it wasn’t rescheduled.
In which case it is, in my opinion, unconstitutional for article 2 separation of powers reasons, unless there were some incapacity of the president.
Just a quick question, would the Constitution
Article II of the Constitution says the president may nominate principal officers “with the advice and consent of the Senate.” The Federal Vacancies Reform Act does allow for a 210-day window for a non-Senate confirmed selection to serve as an “acting officer,” however, would the Article II of the Constitution “trump” that vacancy law.?
But would Article II of the Constitution “trump” the Fed Vac Act? Both are Federal laws but is either higher then the other?
What? Next you’ll be telling me the courts can determine who gets press passes.
Thanks for that. ...I thought it was the START of the next session, but your posting indicates it’s the END, instead.
That gives the Senate their whole session to confirm a replacement, and if they end the session without a confirmation, then the President gets to make another recess appointment.
Again, there has not been a recess since 2010 which means there has not been a recess in the last two years, so what makes you think there will be one at the end of the current session? Evidence suggests otherwise. Yes, there are some bills that need to pass to keep the govt open, but what does that have to do with a recess?
It's not like they can adjourn the 115th Congress on 11:59pm on December 31 and convene the 116th on 12:01am an January 1.
-PJ
The 114th Congress adjourned sine die on January 3, 2017. The 115th Congress convened on January 3, 2017 one hour later. Obama was still President until January 20.
The 115th Congress is targeted to adjourn on December 14, 2018. Of course, this may change.
-PJ
I guess I'm perplexed why people think it will be different this year. The senate led by republicans have not officially adjourned because the republicans have stated on the record they do not want Trump to make recess appointments.
So, forget the House having to give permission, if the Senate has not officially recessed, not even one time to prevent Trump from making recess appointments, why would they now recess before the next Congress?
It's interesting that the 114th Congress adjourned an hour before the 115th Congress convened by scheduling a "special legislative session" for the first week of January 2016, while Obama was still President for two more weeks. Prior Congresses had at least a week between the close of one and the start of another.
-PJ
The republicans would do a pro forma session about every three days and as long as a week, which historically, the tradition dictated that the Senate was not in recess. Obama made recess appointments anyway between these pro forma Senate sessions. The republicans in Congress sued and won a SC case a few years ago that stated pro forma sessions are indeed official sessions and having a reasonable number of days between sessions does not constitute a recess.
Republicans will have to work to keep Congress in session after the new year, perhaps at the cost of any goodwill they've earned with confirmations.
-PJ
They have to be insession to pass the bills. That has to be done before they can adjourn (or the Gov shuts partially down- maybe they’ll do that but I don’t see it).
Trump has a lot of vacant admin positions to fill, I assume he’d be folling those- not judgeships. So it’s not as big a deal to the Dems.
It’s my opinion that if Mitch doesn’t manage to get a recess for Trump to fill the admin positions he’s being duplicitous.
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