Notice & Comment

The Whitaker Appointment Controversy and Some Potential Collateral Damage

Shortly after the 2018 midterm elections, President Donald Trump accepted Attorney General Jeff Sessions’ resignation. Under a default statutory rule, when the office of Attorney General becomes vacant, the Department of Justice’s Deputy Attorney General may “exercise all the duties of that office.” See 28 U.S.C. § 508. If this provision had applied, Deputy Attorney General Rod Rosenstein would have become the Acting Attorney General.

However, President Trump invoked the Federal Vacancies Reform Act of 1998  (the vacancies act) and selected Sessions’ chief of staff, Matt Whitaker, for the Acting Attorney General position. See Office of Legal Counsel Opinion, 2007 WL 5334854 (Sept. 17, 2007) (concluding that the President may invoke the vacancies act as an alternative to specific Attorney General succession rules). This has raised a legal controversy because some believe that an Acting Attorney General is a principal officer who must be Senate-confirmed. See Katyal & Conway, Trump’s Appointment of the Acting Attorney General Is Unconstitutional, New York Times Op-Ed (Nov. 8, 2018); U.S. Const., Art II, § 2. Although Whitaker had been confirmed by the Senate in connection with his prior service as a U.S. Attorney, no confirmation was provided or needed when he joined the DOJ as part of Sessions’ staff.

The plain language of the vacancies act permitted Whitaker’s appointment. See 5 U.S.C. § 3345(a)(3) (allowing appointment of some GS-15 employees to acting positions within their respective agencies). But, as suggested by Justice Thomas’s concurring opinion in NLRB v. SW General, 137 S.Ct. 929, 945 (2017), the vacancies act may be partly unconstitutional. Unless the Senate is in recess, the Constitution permits the President to appoint principal officers only with the advice and consent of the Senate. See Edmond v. United States, 520 U.S. 651, 660 (1997). And if the Acting Attorney General is a principal officer (rather than an “inferior” one), President Trump could not alone appoint Whitaker. See also 137 S.Ct. at 946 (Thomas, J., concurring) (appointment of principal officers under the vacancies act “raises grave constitutional concerns”). Only previously-confirmed officials may be appointed.

If this view holds, it will inflict some collateral damage. The Senate Committee on Governmental Affairs, in describing the vacancies act, believed that the “first assistant” to an officeholder should, by default, execute the office’s duties when a vacancy arises. See 5 U.S.C. § 3345(a)(1); Sen. Report 105-250, p.12 (July 15, 1998). The committee believed that the first assistant would often be a Senate-confirmed official herself. See id. However, the first assistant would also often be “a career official with knowledge of the office.” Cf. also id. (noting that though the first assistant to an office is sometimes specified by statute, she may be otherwise specified by regulation). Given a career official’s accumulated knowledge, allowing her to perform the functions of the vacated office would provide “flexibility in the performance of governmental operations.” Id.

If the challengers to the Whitaker appointment prevail, many first assistants would become ineligible for acting officer positions. When the acting position relates to a principal office, only Senate-confirmed persons can perform the functions of that office. The default rule under the vacancies act would be unconstitutional to the extent it allowed otherwise.

Some agency-specific statutes would also become unconstitutional. The Consumer Financial Protection Bureau, for example, is headed by a Presidentially-appointed Director but, under a default rule, the Deputy Director will serve as the Acting Director in the case of “absence or unavailability.” See 12 U.S.C. § 5491(b). The Deputy Director, however, does not go through Senate confirmation and is instead appointed by the Director alone. See 12 U.S.C. § 5491(b)(5). If the challengers to the Whitaker appointment prevail, the Deputy Director cannot, in fact, serve as Acting Director. The Acting Director must be Senate-confirmed, and the CFPB statute, as written, is unconstitutional.*

However, many have understood that acting officers are inferior officers who may be appointed without Senate consent. The Vacancies Act of 1868, 15 Stat. 168, reflected that understanding, as did a 1792 statute relating to the Treasury, State, and War departments. See Act of May 8, 1792, ch. 37, §8, 1 Stat. 281. See also United States v. Eaton, 169 U.S. 331, 343 (1898) (acting officer, operating temporarily in exigent circumstances, was not “transformed into the superior and permanent official”); Office of Legal Counsel Opinion (Jun. 12, 2003) (inferior officer who is appointed to exercise the functions of a principal office on an acting basis remains an inferior officer under the Appointments Clause); Steve Vladeck, Whitaker May Be a Bad Choice, but He’s a Legal One, New York Times (Nov. 9, 2018); William Baude, Who Is Lawfully the Attorney General Right Now?, Volokh Conspiracy Blog (Nov. 10, 2018) (“first principles suggest that Matthew Whitaker’s acting appointment is invalid, but precedent and practice might suggest the opposite”).

These authorities do not definitively resolve whether the challenges to the Whitaker appointment are valid. That remains an important, open question. But if the original public meaning of a constitutional provision does not resolve an issue, it may be perfectly appropriate to consider historical understandings and the consequences associated with different potential interpretations. Courts should do so as they consider the challenges to the Whitaker appointment.

Follow me on Twitter: @AndyGrewal

Comments welcome. This post may be updated.

*The unconstitutionality of the statute could be viewed in a couple different ways. First, the Deputy Director position might itself be viewed as a principal officer position because the officeholder might potentially exercise the functions of the Director. Viewed this way, Congress has unlawfully allowed the Director to appoint the Deputy Director, because only the President may appoint a principal officer.  Alternatively, the succession rule itself could be deemed unconstitutional. The Deputy Director could be lawfully appointed by the Director, but she could not lawfully perform the functions of the Director’s office.

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