Senator Richard Blumenfeld (D-CT) a member of the Judiciary Committee is contemplating suing to block the appointment by Donald Trump of Matthew Whitaker as Acting Attorney General. He should but he has a handful of legal theories to choose among. A former state Attorney General (and Editor of the Yale Law Journal), he will not make any impulsive choices. There are three principal contending views of the legality of the Trump appointment of Matthew Whitaker as Acting Attorney General.
Neal Katyal and George (Mr. Kellyanne) Conway hold in an Op-Ed that the move violates the Appointments Clause of the federal Constitution which requires Senate confirmation of principal officers (those who report directly to the President)
Stephen Vladeck of the University of Texas supports the view that the Vacancies Reform Act of 1898 (excerpted below) permits the appointment. Relying on the 1898 case U.S. v. Eaton Vladeck argues in an Op-Ed that a temporary A.G. is not a principal officer and therefore does not require Senate confirmation. Asha Rangappa in a long Twitter thread disputes Vladeck's reading of the Eaton case. Vladeck himself assumes the Vacancies Act is operative, dismissing the argument that Sessions was fired - since his letter says that he resigned "[A]t your request". A resignation is a resignation is a resignation.
Katyal and Conway are dismissive of arguments based on the "technicalities" of the Vacancies Reform Act of 1998. Fordham's Jed Shugerman wades into those technicalities and concludes in a blog post that the appointment is statutorily illegal. He relies on 28 USC 508 which authorizes the Attorney General to designate the Senate-confirmed Assistant Attorney General (here our hero Rod Rosenstein) to assume the duties of the A.G. The technicalities arise here as to whether the A.G. had to in fact designate Rosenstein as successor in the event of vacancy.
But in my view Vladeck is too quick to dismiss the resignation point. The Civil Rights Act of 1964, 42 USC 200 e -2 (a), et seq, forbids discrimination based on race, color, sex, religion, or national origin. That act has given rise to a substantial body of state and federal law regarding discriminatory termination. One who has formally resigned may be found to have been discharged if the employer has made continuation intolerable by "badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation". Trump's relentless humiliation of Sessions has been well documented, most recently by Margaret Hartmann in New York Magazine.
Senator Blumenthal should give careful consideration to the constructive discharge argument. It has the virtue of simplicity - making the vacancies act unavailable, and leaving Rod Rosenstein in place in charge of the investigation by former FBI Director Robert Mueller. - gwc
Vacancies Reform Act of 1998 5 USC §3345. Acting officer"(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the General Accounting Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office-
"(1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;"(2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or"(3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if"(A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and"(B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS-15 of the General Schedule.The Vacancies Reform Act of 1998 provides:"5 U.S.C. §3345. Acting officer"(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the General Accounting Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office-"(1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;"(2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or"(3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if"(A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and"(B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS-15 of the General Schedule.
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