Attorneys General are Department Heads under Article II, and Should Be Senate-Confirmed – SHUGERBLOG

Attorneys General are Department Heads under Article II, and Should Be Senate-Confirmed – SHUGERBLOG
by Jed Shugerman

In its memo on the Whitaker appointment as Acting Attorney General, the OLC re-labels the Acting AG an “inferior officer” to avoid the Senate confirmation problem. The OLC asserts that the temporariness of the acting appointment makes him “inferior,” but time-boundedness has no relationship to the fundamental problem that comes directly out of the Constitution’s text:

1. An Acting Attorney General is the head of a department, the DOJ, whether short- or long-term.
2. A head of a department is plainly a principal officer as a matter of constitutional text.
3. Principal officers must be confirmed by the Senate.

Each of these three steps are clear. The strong conclusion from this textual observation is that there can be no such office as Acting Attorney General or any kind of acting head. Statutes might delegate many tasks of a department head to deputies and assistants, but there should be no unconfirmed acting department head of any kind under Article II.

The weaker conclusion from this reading of Article II is that as long as Congress and the President have created an acting department head, that officer must be Senate-confirmed in some capacity, and probably limited to confirmed officers from that particular department, at least to mitigate the problematic constitutionality of this office, as a matter of constitutional avoidance.