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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region Forums15 state AGs just filed an amicus brief to block Trumps illegal appointment of Whitaker
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NY AG Underwood
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@NewYorkStateAG
#BREAKING: 15 state AGs just filed an amicus brief opposing Pres. Trumps illegal appointment of Matthew Whitaker as Acting Attorney General of the United States. The rule of law must be protected. https://on.ny.gov/2P4RXQ7
manor321
(3,344 posts)Gothmog
(145,839 posts)From the press release of the WA AG http://www.atg.wa.gov/news/news-releases/ag-ferguson-issues-statement-after-joining-brief-challenging-whitaker-s-authority
Once again, President Trump is ignoring the law, this time by appointing an illegitimate attorney general, said Ferguson. This must be challenged.
The brief, signed by 14 other Attorneys General, supports Marylands request to block Whitaker from exercising the authority of the U.S. Attorney Generals office, or to substitute Deputy Attorney General Rod Rosenstein in his place. The Attorneys General point out that Whitakers appointment is fraught with constitutional doubts.
The legal controversy surrounding Mr. Whitakers appointment has threatened the legitimacy of the Departments actions and the vital relationship between the Department and the States, the Attorneys General write. The Amici States therefore have an urgent interest in a lawful resolution of this issue, so that no doubts surround the legitimacy and authority of the Office of the U.S. Attorney General.
lilactime
(657 posts)Mrs. Overall
(6,839 posts)The filing of the amicus brief was filed by the Attorneys General of Pennsylvania, the District of Columbia, New York, Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, New Mexico, North Carolina, Oregon, Rhode Island, Virginia, and Washington.
malaise
(269,278 posts)Great news
BigmanPigman
(51,651 posts)smirkymonkey
(63,221 posts)onenote
(42,829 posts)Both sides have ignored several significant issues raised by the appointment of Whitaker as Acting AG and by the challenges to that appointment.
In particular, the challengers focus on whether the Attorney General Succession Act takes precedence over the Vacancies Reform Act and on whether allowing Whitaker to serve conflicts with the Constitution's appointment clause insofar as it would allow Whitaker to serve without having been confirmed by the Senate.
However, there are other issues that these arguments raise. For example, does the Attorney General Succession Act conflict with the Constitution's appointment clause insofar as it usurps the President's exclusive authority under that clause to nominate and appoint principal officers? The Deputy AG, Rod Rosenstein, wasn't nominated or confirmed to be AG -- he was nominated and confirmed to be Deputy AG and Congress arguably doesn't have the power to install the Deputy AG as Acting AG without the President affirmatively nominating the Deputy AG to become AG (and without the Senate affirmatively confirming that nomination).
Other questions? To what extent is the confirmation of someone to a post other than the one in which they will serve enough to satisfy the Constitution. Could Congress pass a law called the Supreme Court Succession Act specifying that if there is a vacancy in the Supreme Court, any judge that has been confirmed by the Senate can serve as an "acting" replacement? Could a president under current law rely on the Vacancies Reform Act to fill a vacancy in the Deputy Attorney General position with someone who has never been confirmed for any position, or has been confirmed for some unrelated position (Secretary of HUD?) and then, fire the current AG and have that person become Acting AG automatically with no say so from Congress?
More questions: To what extent does it matter that the Attorney General Succession Act, unlike the Vacancies Reform Act, does not impose a time limit on the term of the Deputy AG as "acting" Attorney General. And is an "acting" Attorney General a "principal officer" that must be confirmed by the Senate?
The Whitaker appointment presents a complex set of issues and it will be interesting to see how the courts deal with them or whether they too simply try to ignore some of them. One analysis I read suggested that the best resolution, consistent with the Constitution is for the courts to find (1) that the Attorney General Succession Act takes precedence over the VRA, thereby invalidating Whitaker's appointment; (2) find that while the Attorney General Succession Act does not impose a time limit on the term of the Acting AG, the statute should be read so as to avoid constitutional issues as having an implicit "temporary" element -- that an acting AG can only serve for a reasonable time, with reference to the VRA time limits as guidance; and (3) find that the Acting AG position is not a principal office for which presidential nomination and senate confirmation based on the interpretation making the Acting AG position temporary (and thus fillable by the Deputy AG even though the Deputy AG was not nominated for or confirmed for the position of AG.
That sounds like a plausible outcome although I doubt that's how it will turn out.