It appears that after their successful bid to takeover the House, Democrats will continue to question every action that President Donald Trump takes. It’s nothing new and this time Rep. Adam Schiff (D-Calif.) is leading the charge.
On Sunday, Schiff (D-Calif.) claimed that the Acting Attorney General Matthew Whitaker’s appointment was unconstitutional and said that the Trump administration would lose the argument in the U.S. Supreme court should they take the challenge there.
Schiff indicated that he would most likely challenge the appointment when Democrats take control of the House in January.
What Schiff failed to mention, however, is that there are several legal challenges already underway to Whitaker’s temporary appointment.
Maryland Attorney General Brian Frosh representing the State of Maryland recently filed for an injunction against Whitaker’s appointment. A hearing is scheduled for December 19.
Also, experienced Supreme Court litigator Thomas Goldstein filed a motion on November 16 asking the justices to decide if Whitaker could legally be the acting AG.
In addition, on November 12, the city attorney of San Francisco wrote a letter to the U.S. Department of Justice indicating that he may take future court action if the DOJ doesn’t provide a legal justification for Whitaker’s designation.
What about the Law and Opinions of Others?
This Act generally provides:
“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.”
Whitaker would fall under the “officer or employee” who has served at least 90 days at the agency at a senior pay scale,” since he has served more than 90 days in his role as Attorney Jeff Sessions’ chief of staff.
The Justice Department has also already weighed in on the temporary Whitaker appointment.
The DOJ’s 20-page memo concluded:
1) Whitaker’s appointment is consistent with the plain terms of the Vacancies Reform Act, “because he had been serving in the Department of Justice at a sufficiently senior pay level for over a year” as the statute requires.
2) Whitaker is only serving on a temporary basis, so he wasn’t required to be confirmed by the Senate ahead of his selection last week, though the Justice Department acknowledged that situation had not come up in over a century. DOJ found that in 1866, a non-Senate confirmed assistant attorney general served as acting attorney general, before the department was founded.
3) Even though a separate statute exists that provides a succession plan at the Justice Department, the President can choose someone else consistent with the Vacancies Act.
Schiff and other Democrats seem to be relying of the Appointments Clause in Article II, Section 2, Clause 2 of the United States Constitution which allows a President to appoint those deemed “inferior officers” who may be appointed through advice and consent of Senate but whose appointment Congress may place instead in the President alone as opposed to “principal officers” who must be appointed through advice and consent of Senate.
Schiff is claiming that Whitaker is a “principal officer” and must be confirmed by the Senate before becoming an acting attorney general.
However, if Schiff decides to proceed, he will need to argue against the court finding in the case of Edmond v. United States (1997).
In that case the court held that “‘inferior Officers’ are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.”
Whitaker previously worked under the direction and supervision of former Attorney General Jeff Sessions’ as his chief of staff. While Whitaker’s position was not confirmed by the Senate, Sessions was “appointed by Presidential nomination with the advice and consent of the Senate,” thereby meeting the necessary criteria handed down in Edmond.
However, Schiff would likely argue that the Appointments Clause would not classify Whitaker’s position as acting Attorney General as an “inferior” one.
What should also be noted is that the Appointments Clause may not apply to positions that are “temporary” in nature as is the situation with Whitaker.
However, in 2017, Justice Clarence Thomas wrote a concurring opinion, which is not binding, in the case of NLRB v. SW General Inc.
Thomas felt that the Vacancies Reform Act’s provision allowing the appointment of non-Senate-confirmed officials violates the Appointments Clause. He also felt that the Appointments Clause should apply even to temporary appointments.
Again, Thomas’s opinion is not binding but only persuasive.
In any event, if the case is argued before the Supreme Court, it is not a slam dunk for Democrats as Schiff would have you believe.