Thursday, November 08, 2018

Constitutional Is as Constitutional Does

It's not that I don't care about the appointment of Session's former Chief of Staff as the interim Attorney General of the United States; it's just that I wasn't sure about the legal arguments for and against his appointment.

Andrew Napolitano has been insisting on FoxNews that Matthew Whitaker is not qualified to serve as interim Attorney General because, despite having been a U.S attorney in the past (a position that requires Senate confirmation).  I'm sympathetic to that conclusion, but he doesn't really provide much legal reasoning to back his assertion.  This does:

Much of the commentary about Mr. Whitaker’s appointment has focused on all sorts of technical points about the Vacancies Reform Act and Justice Department succession statutes. But the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.

If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom President Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.

Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government. It is one thing to appoint an acting underling, like an acting solicitor general, a post one of us held. But those officials are always supervised by higher-ups; in the case of the solicitor general, by the attorney general and deputy attorney general, both confirmed by the Senate.
We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but President Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.
Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in such a position of grave responsibility. The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is President Trump himself, and the president is hopelessly compromised by the Mueller investigation. That is why adherence to the requirements of the Appointments Clause is so important here, and always.

As we wrote last week, the Constitution is a bipartisan document, written for the ages to guard against wrongdoing by officials of any party. Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals. As Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” He added “they knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”

We must heed those words today.

Well, that sounds better and seems clearer; unfortunately, it's not that simple, either.  Start with the reference to the Vacancies Reform Act (VRA):

What’s Trump’s authority for superseding the AG Succession statute?  He’s undoubtedly invoking the Vacancies Reform Act of 1998 (VRA), which provides (5 U.S.C. § 3345(a)(3)) that the President “may direct an officer or employee of [an] Executive agency to perform the functions and duties of [a] vacant office,” provided that the officer or employee has served, for at least 90 days during the year before the vacancy, in a position for which the pay is at least the level of GS-15—a criterion that Matthew Whitaker satisfies.

The Department of Justice’s formal view is that the VRA provides the President with an alternative authority, in addition to the AG Succession Act, to designate who shall perform the AG’s functions and duties during a vacancy in the office. Thus, for example, when AG Alberto Gonzales resigned in 2007, President George W. Bush named the Assistant Attorney General for the Civil Division, Peter Keisler, to be the Acting Attorney General, when the AG Succession Order in effect at the time, issued pursuant to the AG Succession Act, would have assigned those functions to the Solicitor General, then Paul Clement.

As far as I know, however, the “appointment” of Whitaker would be the first time in U.S. history that the President has designated as an “acting” Attorney General someone who was not then serving in an office to which he or she was appointed by and with the advice and consent of the Senate, and it’d be the first time since 1868—i.e., since Congress enacted a specific AG Succession statute—that the “acting” AG would be anyone other than a sitting Senate-confirmed DOJ officer.  (In 1868, Secretary of the Interior Orville Browning served as acting AG for a few weeks while his own (ultimately unsuccessful) nomination to be AG was pending in the Senate.  And in 1848, President Polk named Secretary of the Navy John Mason to serve as acting AG for a few weeks before Isaac Toucey was confirmed.  Mason had himself been the (confirmed) AG just two years earlier.) 

Yeah, I know; chewy goodness.  Bear with it, though, because all of that is a set up to the next question:  is this appointment legal? (and I'll lighten the load here)

First, OLC might simply be wrong in its conclusion that the VRA is an alternative authority that the President may use in lieu of the AG Succession Act to fill a vacancy in the Office of Attorney General.  John Bies has suggested as much—i.e., that Congress’ office-specific instructions in the AG Succession statute about what should happen when the AG office is vacant should supersede the more general provisions of the VRA.

I haven’t thoroughly researched and considered the question, so I don’t know have a clear view about whether Bies is right.  I have some doubts, however, in light of the particular circumstances surrounding the enactment of the 1998 law.  [This turns into a discussion of the legislative history of the VRA; a bit arcane, but this is how lawyers examine these issues.  Still, I'll spare you.]
Second, there’s a possible constitutional problem in using the VRA to replace a principal officer (such as the Attorney General) with someone who hasn’t been confirmed by the Senate for that office or even for a related office within DOJ.  In a recent concurring opinion, Justice Clarence Thomas argued that such a temporary appointment would violate the Appointments Clause of Article II of the Constitution, Art. II., § 2, cl. 2, which provides that such principal officers must be appointed by the President by and with the advice and consent of the Senate.

And now we get back to the Conway/Katyal op-ed, which so casually dismissed VRA concerns and went straight to the Constitutional issue.  One point to note:  courts prefer to decide cases based on statutes, not on Constitutional principles.  If this ever got to court, the VRA would be the primary focus.  But pay attention to how this lawyer treats the Conway/Katyal argument that Justice Thomas has ruled on this issue:

Thomas’s argument is problematic (which isn’t surprising, seeing as how no one in the case briefed the question).  Most significantly, [CORRECTION: and as Thomas acknowledged in a footnote,] in an 1898 decision, United States v. Eaton, the Supreme Court held that a temporary appointment to a principal office was constitutional because a contrary holding “would render void any and every delegation of power to an inferior to perform under any circumstances or exigency the duties of a superior officer, and the discharge of administrative duties would be seriously hindered.”  (See also pages 123-124 of this 2003 OLC opinion, relying upon Eaton.)  Thomas’s constitutional concern would also, I think, be misplaced in the usual case, where another Senate-confirmed DOJ officer (such as Rosenstein) is tapped to fill in for the AG, because such temporary service as “acting” AG would be “germane” to the office for which the Senate confirmed the person.  See Weiss v. United States (1994); cf. Shoemaker v. United States (1893) and pages 547-550 of this 1994 OLC Memorandum.

First, Thomas' argument was dicta, not dispositive (i.e., it doesn't settle the issue raised here, or in the case he's writing for).  Second, there are problems in Thomas' argument that could mean it would be set aside rather than upheld as an iron rule in this case.  That second highlighted bit just means Thomas' argument is so flawed it can't really apply except in very specific circumstances; and if the facts of this case don't meet those circumstances, it fails.  Thomas, in other words, goes so far his argument is self-defeating.

So where does that leave us?  Well, the DOJ is full of lawyers, and they are all asking themselves these questions.  Trump has only announced the appointment; what's been done to make it official is still an open question; though that's of no real moment, assuming it will be made official.  The DOJ is full of lawyers, but could they sue?  Would they?  That would certainly be a case of first impression, although I think they also would certainly have standing.  They cannot follow the orders of an unqualified Attorney General, as such an appointment would be void ab initio, no matter when the courts rule on the matter (and assuming they rule against it).

And that, to me, is the interesting question.  If the DOJ lawyers are not sure Whittaker can actually function as AG, even in an interregnum, what will they do about it?  It might not even be left to the DOJ lawyers, though they would be as affected as parties to cases they DOJ is pursuing:

And as I noted above, almost all of DOJ’s actions are taken pursuant to authorities Congress has assigned to the Attorney General.  For example, all litigation in which the United States, an agency, or officer thereof is a party or is interested “is reserved to officers of the Department of Justice, under the direction of the Attorney General.”  28 U.S.C. § 516.  Indeed, if recollection serves, the AG himself technically signs many DOJ legal pleadings, such as briefs.  The AG also issues regulations, approves certain seeking certain criminal sentences, and much else.  Anyone adversely affected by any of these actions might challenge the legality of Whitaker’s appointment.

I'm not as worried about the Mueller investigation as I am about this, to be honest.  The mess here could extend to the very function of the DOJ very, very rapidly.  If the courts determine this appointment is unconstitutional (I'm not sure they would, but arguendo) that undoes everything done in the name of the interim AG back to the date and time of his appointment.

Think about that, and then tell me the biggest problem is what happens to the Mueller investigation.


  1. Thomas' arguements are always dick-ta.

  2. I saw what you did there.