The president appointed Whitaker under the Federal
Vacancies Reform Act, a 1998 federal law laying out rules for how a president
may appoint temporary officers. Under that law, presidents may appoint a
temporary officer to a Senate-confirmed, presidentially appointed position when
the previous officeholder “dies, resigns or is otherwise unable to perform the
functions and duties of the office.” The president may install any other person
who has been confirmed by the Senate, or an “officer or employee” who has
served at least 90 days at the agency at a senior pay scale, reported the ABA Journal.
Whitaker, as the former chief of staff, would fall
under the second category. That’s unusual, critics note. Most acting federal
officers are promoted from a position as deputy to the vacant office. The
Vacancies Reform Act makes this the default succession, and the Justice
Department’s succession law, 28
U.S.C. § 508 (2011), designates the deputy attorney general as the
preferred acting attorney general. This would make Rod Rosenstein, who has been
through a Senate confirmation, the presumptive successor to Sessions. On
Tuesday, the state of Maryland made
that argument in a motion challenging Whitaker’s appointment as
illegal and unconstitutional.
Thus, the debate over Whitaker’s appointment is
partially about whether the Vacancies Reform Act’s provision allowing the
appointment of non-Senate-confirmed officials violates the Appointments Clause.
Justice Clarence Thomas said it did in 2017, writing in NLRB v. SW
General Inc. that the Appointments Clause should apply even to
temporary appointments.
“That the Senate voluntarily relinquished its
advice-and-consent power in the FVRA does not make this end-run around the
Appointments Clause constitutional,” Thomas wrote.
The Wall Street Journal notes that some critics of
the president’s choice also argue that the provision of the Vacancies Reform
Act at issue doesn’t apply to “principal officers” that report directly to the
president.
As Lawfare and Slate note, there’s also a debate
over whether the Justice Department’s succession statute should override the
Vacancies Reform Act. John Bies, writing at Lawfare, notes that rules of
statutory interpretation favor specific statutes over more general ones.
However, the Justice Department itself, through its Office of Legal Counsel,
has supported a deviation from the line of succession during President George
W. Bush’s administration in 2007, when former Attorney General Alberto Gonzalez
stepped down. In that case, Bush selected Peter Keisler, who had gone through
the Senate confirmation process as the assistant attorney general of the
Justice Department’s Civil Division. Keisler served less than two months as the
acting attorney general before Michael Mukasey was confirmed as U.S. attorney
general by the Senate.
“The Vacancies Reform Act nowhere says that, if
another statute remains in effect, the Vacancies Reform Act may not be used,”
the 2007 memorandum
opinion states. “Nor would it make sense that the attorney general,
through the exercise of a discretionary authority to name a further order of
succession after the deputy attorney general and associate attorney general,
could prevent the president, his superior, from using his separate authority
under the Vacancies Reform Act. Indeed, for this reason, we believe that the
president’s action under the Vacancies Reform Act, without more, trumps the
attorney general’s designation of a succession under section 508.”
On Wednesday, the Department of Justice released
a new memo referencing the 2007 opinion and justifying Whitaker’s
appointment as within the president’s powers.
Gonzalez himself weighed in on Whitaker’s
appointment in an NPR interview
on Saturday. “I’ve got some issues with this, quite frankly, because the notion
that the chief of staff who is not Senate confirmed would have more experience,
more wisdom and better judgement than someone like the deputy attorney general
or even the solicitor general, people in the line of presidential succession
within the Department of Justice, to me, it confounds me,” he told NPR.
Finally, some question whether the Vacancies Reform
Act applies when the departing officer was fired. Sessions resigned, but said
in his resignation letter that he was resigning at the president’s request,
raising questions about whether that is effectively a firing. The Vacancies
Reform Act says it applies when the officer “dies, resigns or is otherwise unable
to perform the functions and duties of the office.” Attorney John Lewis of
Democracy Forward and Elizabeth Hempowicz, director of public policy for the
Project on Government Oversight, told the ABA Journal in October that there’s
an active legal debate on this issue, with no court rulings and a
pending case on the issue as applied to the Department of Veterans
Affairs.
Those who say the Vacancies Reform Act includes
firings point to the “otherwise unable” language as wide enough to encompass
firings. Law professor Steven Vladeck of the University of Texas wrote
in the New York Times on Saturdaythat Sessions’ resignation letter is
enough to pass muster, and that the Vacancies Reform Act would apply to
Whitaker’s appointment. Professor Anne Joseph O’Connell of Stanford argues on
Twitter that whether or not Sessions was fired, the Vacancies Reform
Act would apply.
“What about a bad apple in a [presidentially
appointed] job? If the person refuses to resign (and impeachment takes time)
what would happen to the job’s duties if they were non-delegable and could not
be performed, except by an acting (confirmations take time too)?” wrote
O’Connell. She notes that there are issues with the Vacancies Reform Act that
could be tweaked, “but don’t burn down a statute that makes modern government
work because of [Trump].”
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