ABA Panel Examines Acting A.G. Whitaker Appointment and Vacancies Act

I have opined that the Whitaker appointment as Acting Attorney General  improperly bypassed the Constitution's Appointments clause and the Department of Justice Vacancies Act.  Whitaker displaced Rod Rosenstein who succeeded to the discharged A.G. Sessions by operation of law.- gwc

ON December 18 the ABA Administrative Law section hosted a telephone webinar on the Vacancies Act, the Constitution, and the Appointment of Matthew Whitaker.

Is Matt Whitaker legally serving as the Acting Attorney General?

In early November, at the request of President Trump, Attorney General Jeff Sessions resigned. Under the Department of Justice’s succession statute, Deputy Attorney General Rod Rosenstein would be the Acting Attorney General until a new nominee could be confirmed. President Trump, however, immediately turned to the Federal Vacancies Reform Act of 1998 to name Matt Whitaker, Sessions’s Chief of Staff, as Acting Attorney General. Under the Vacancies Act, the default acting official is the first assistant to the vacant office, here the Deputy Attorney General. But the Act permits the President to choose another Senate-confirmed official from any agency or a sufficiently senior official at the same agency who has served for at least ninety days. Whitaker falls into that last category.

Maryland, some Democratic Senators, and others have turned to the courts to challenge Whitaker’s new role—on constitutional and statutory grounds. The district court in Maryland’s challenge will hear oral arguments on December 19. There is a motion pending at the Supreme Court to substitute Rosenstein as the opposing party in a petition for certiorari.

President Trump announced on December 7 that he intends to nominate William Barr for Attorney General. Similar challenges would arise if other top agency officials leave and the President selects non-Senate confirmed individuals to serve temporarily under the Vacancies Act.

• William Baude, Professor of Law and Aaron Director Research Scholar, University of Chicago Law School
• Marty Lederman, Visiting Professor of Law, Georgetown Law School
• Jennifer Mascott, Assistant Professor of Law, Antonin Scalia Law School
• Anne Joseph O’Connell, Professor of Law, Stanford Law School
• Stephen Vladeck, A. Dalton Cross Professor in Law, University of Texas School of Law

William Baude will explain why many formalists, such as Justice Thomas, see the Vacancies Act as unconstitutional when non-Senate confirmed officials are selected to serve temporarily in principal offices. Steve Vladeck will argue that the Appointments Clause does not preclude such service. 
Jennifer Mascott will shed light on early historical practices and discuss how these practices might shape the current constitutional analysis. Marty Lederman will suggest that the Department of Justice’s succession act should be read to prevent Whitaker from serving as Acting Attorney General in order to avoid a serious constitutional question. Anne Joseph O’Connell will moderate the discussion and provide some data on modern practices.