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Acting Appointments and the Constitution’s Original Meaning

There has been much controversy over the naming of Matthew Whitaker, the Chief of Staff of former Attorney General Sessions, to be Acting Attorney General. Whitaker was not serving in a position that required the advice and consent of the Senate. So the question is whether Whitaker can be named as Acting Attorney General when the Attorney General can only be appointed with the advice and consent of the Senate. In my view, the Constitution’s original meaning does not allow this appointment, but nonoriginalist positions might very well permit it.

Many years ago, I published an article on the original meaning of the Recess Appointments Clause. While Justice Scalia relied on the theory I developed in the Noel Canning case, unfortunately his opinion was a dissent for four justices. The majority accepted Justice Breyer’s view, which was clearly contrary to the original meaning. In that article, I also developed an argument what the Constitution’s original meaning says about acting appointments, which I present below.

The Attorney General is the Head of the Department of Justice. As such, the Attorney General is not an inferior officer under the Appointments Clause and therefore can only be appointed with the advice and consent of the Senate. How then can the President alone name a person to be Acting Attorney General—that is, to serve temporarily as Attorney General? To understand how this can happen requires a little background. When the President makes an “acting appointment,” it is important to understand that there is no appointment made under the Constitution.

For example, suppose that Congress provides that either the Deputy Attorney General or the Solicitor General, both of whom are appointed with the advice and consent of the Senate, shall be eligible to serve as Acting Attorney General when, in the absence of the Attorney General, the President designates one of them to be Acting Attorney General. In this situation, no appointment actually occurs. Instead, the correct way to conceptualize this is that both the Deputy Attorney General and the Solicitor General have, as one power of their office, the responsibility to serve as Acting Attorney General when the President so designates them. Thus, when the Senate consented to their appointment, it already consented to them serving as Acting Attorney General.

This process cannot occur constitutionally, however, if the person designated to serve as Acting Attorney General was not appointed with the advice and consent of the Senate. Since serving in the position of Attorney General requires an advice and consent appointment, a person who has been appointed without the Senate’s advice and consent cannot serve in that position, even temporarily.

The best argument on the other side is that temporarily serving as acting Attorney General is not the same as serving as Attorney General. Therefore, a temporary appointment does not require advice and consent. But this argument is weak. It is hard to know how short an appointment needs to be to be considered temporary. Moreover, being the Head of a Department is an important job, even if one only serves there for a brief period. It is not the length of time, but the duties that are performed that are relevant.

It is true that an early statute, passed in 1792, appeared to allow officers who had not secured the advice and consent of the Senate to serve as Heads of Departments. But that view is problematic. Interestingly, Senator Rufus King, who was a Philadelphia Framer, recognized the problem in 1813. David Currie writes that King argued that allowing officers appointed without the Senate’s consent to act as the Head of the Department “would permit a President to evade the requirement of Senate approval.”

In my next post, I will explain why the analysis differs for nonoriginalists.

Reader Discussion

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on November 13, 2018 at 09:48:15 am

But the Congress has NOT authorized that an Asst AG may fill the AG slot on a temporary basis.

So,

what then of other Superior offficers who HAVE BEEN appointed to temporary slots. There is more than just an early 19th century example of such appointments. Was it Ramsey over at Originalism blog or John Yoo (elsewhere) who pointed this out.
Where does established practice come in?

Just some questions, here?

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gabe
on November 13, 2018 at 10:58:56 am

Prof. Rappaport,

Hypothetically, could a determined Administration legally appoint Matthew Whitaker as Acting A.G. were it to take the admittedly circuitous (and sneaky) steps as follows:

1) He was in fact, subject to "advice and consent" and confirmed by the Senate when confirmed as U.S. Attorney for the Southern District in 2004.

2) This aside, I believe the AG still has the authority to appoint an interim U.S. Attorney - Sessions may/might have appointed Whitaker as interim U.S. Attorney prior to his resignation (without public notice).

3) "Deputy Attorney General and the Solicitor General have, as one power of their office, the responsibility to serve as Acting Attorney General when the President so designates them. "

4) As one of the power of their office, U.S. Attorney may serve as Acting Solicitor Genernal (US Attorney in a sense, perhaps more precisely, act as Agent of SG when arguing before SCOTUS, but arguably, is in this instance, serving role as "Acting SG").

5) If Rosenstein can act as "Acting AG", overseeing Russian Collusion Probe, simultaniosly as Jeff Sessions served as AG in all other matters, what's to stop the Administration from appointing an interim U.S. Attorney appointed by Sessions (see 2 above) as a simultaneously serving as Acting Deputy Attorney General or simultaneously Acting Solicter Genaral, thereby conferring "as one power of their office, the responsibility to serve as Acting Attorney General when the President so designates them"?

6) Thereby, legally appointing Whitaker as Acting AG.

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Paul Binotto
on November 14, 2018 at 14:00:43 pm

As I said, both history (practice) and precedent SUPPORT the Temporary Appointment.
Here is the OLC Opinion:

https://www.nationalreview.com/bench-memos/olc-opinion-on-legality-of-designation-of-matthew-whitaker-as-acting-attorney-general/

wherein we find that over 160 such appointments have been made and those appointments include (and were signed as) "ACTING Attorney General."

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gabe
on November 14, 2018 at 16:18:09 pm

Seems fairly compelling and persuasive to me, Mr. Gabe.

I only wish that the "people" were able to exercise the same power as the President to appoint "Acting" officials - in that event, we might have a Congress populated by folks who "Act" like Legislators, and who "Act"ually Legislate...

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Paul Binotto
on November 17, 2018 at 13:11:00 pm

and a postcript wherein we find that Eric Holder, Sally Yates (current critics of the Whittaker appointment) have also served as Acting AG:

https://amgreatness.com/2018/11/17/double-standards-galore-in-the-attorney-general-fracas/

My, my - what a web we weave when at first we endeavor to become Democrats (and / or Never Trumpers).

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gabe
on November 27, 2018 at 05:57:12 am

[…] the Whitaker appointment. I agree, at least under the original meaning of the Constitution, the appointment was unconstitutional. Indeed, I developed the theory 12 years ago. But so what? Presidents regularly do not follow the […]

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on December 04, 2018 at 10:19:13 am

[…] the Whitaker appointment. I agree, at least under the original meaning of the Constitution, the appointment was unconstitutional. Indeed, I developed the theory 12 years ago. But so what? Presidents regularly do not follow the […]

read full comment
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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.