Conway's husband in op-ed: Trump's appointment of Sessions replacement 'unconstitutional'

[DonViejo]

BY AVERY ANAPOL - 11/08/18 01:09 PM EST

George Conway, husband of White House counselor Kellyanne Conway, has co-authored an op-ed calling President Trump’s move to replace ex-Attorney General Jeff Sessions “unconstitutional.”

The piece, published Thursday in the New York Times, asserts that Trump’s decision to appoint Matthew Whitaker as acting attorney general is in violation of the Appointments Clause of the Constitution, which stipulates that principal officers must be confirmed by the Senate.

“President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional,” wrote Conway, along with lawyer Neal Katyal. “It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.”

Trump announced Wednesday that Whitaker, Sessions’s chief of staff, would take over for the attorney general. Sessions submitted a letter of resignation Wednesday at Trump’s request.

Whitaker’s appointment has raised eyebrows due to his past criticism of the Russia investigation. Whitaker will oversee the special counsel probe, despite calls for him to recuse himself as Sessions did.

Conway and Katyal’s op-ed cites a Supreme Court decision that ruled the appointment of a lawyer at the National Labor Relations Board invalid because he had not been confirmed by the Senate. Though that ruling was based on a statute, Supreme Court Justice Clarence Thomas also pointed to the Appointments Clause in a separate writing.

more
https://thehill.com/homenews/administration/415740-conways-husband-in-op-ed-trumps-appointment-of-sessions-replacement

[unblock]

1. moreover, pending a valid appointment, rosenstein is actually the acting attorney general

[onenote]

5. Actually, under the theory espoused by Thomas relied on by Kayal and Conway, Rosenstein couldn't

be acting AG either. Why? Because Thomas' position is that a person cannot serve in a position requiring Senate confirmation unless that person has been confirmed by the Senate for "that" position. Rosenstein was confirmed to be Deputy AG, not AG, and under Thomas' extreme reading, couldn't serve unless and until he was separately confirmed to be AG.

See post #4.

[ScratchCat]

6. I disagree

Because the Deputy AG becomes acting AG in any event there is no current Senate confirmed AG. That's one of the duties of the DAG.

[onenote]

8. Thomas' rationale would apply equally to the statutory provision under which the Deputy AG becomes

acting AG.

The Vacancies Act provides that when a principal office becomes vacant "the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346." The Act goes on to provide two other options, including appointment by the president of a person previously confirmed to any office by the Senate or a senior official of the agency in question who meets certain requirements, even if they haven't been previously confirmed by the Senate to any office.

Thomas draws no distinction between these different provisions, stating that "the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate." Thus, his argument would apply whether someone assumed the duties of a principal office via the statutory provision specific to that agency or pursuant to the Vacancies Act.

Nor would Thomas find any distinction between provisions applicable to the "appointment" of a temporary replacement and those that ostensibly result in the automatic elevation of someone to take over those duties. If anything, he'd find the latter situation even more problematic since it not only would result in someone assuming a principal office position without having been confirmed for that position, but would result in that person assuming a principal office position without even being appointed by the President to that position. Thomas' concurrence makes it quite clear that Congress cannot by statute limit the role carved out for it in the Appointments Clause. Presumably he would feel even more strongly that Congress cannot by statute limit the role carved out for the President.

I think Thomas is wrong and I can't imagine his constitutional analysis being adopted by a majority of the Court.

[mia]

2. Hope someone throws the book back at Trump.

[smirkymonkey]

3. "It's illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is

invalid."

Nice move, President Dipshit. I'm sure you've got this "all figured out".

[onenote]

4. I can't access their column, but from the description, they misrepresent the SCOTUS decision

Apparently Kayal and Conway reference NLRB v. SW General, a 2016 Supreme Court decision that construed the Vacancies clause. The 7-2 majority in the case found that the appointment in question violated the Vacancies Act, not because the appointee hadn't been confirmed by the Senate, but because the Vacancies Act provides that a person may not serve as a temporary appointee under that Act if they have been nominated by the president to be the permanent appointee to that office. The facts of the case involved a temporary appointee who also was the nominee for the office. The issue of whether the Appointments Clause requires Senate confirmation of a temporary appointee to a position requiring Senate confirmation was not discussed in either the majority opinion or the dissent. It was only discussed by Thomas in his concurrence and the fact that no other Justice signed onto that concurring opinion is noteworthy.

Thomas' position is, in essence, that whenever an office that requires Senate confirmation becomes vacant, no one can serve in that office, even on a temporary basis, unless they have been confirmed for that specific office. Which is nonsensical, since if one is confirmed, its not for a "temporary" term. In short, there could be no temporary replacements for any vacancy requiring Senate confirmation. Thomas seems to recognize that this would cause total disruption but doesn't care. For example, under his approach, even Rosenstein couldn't be acting AG because he wasn't confirmed to be Attorney General, only Deputy Attorney General. The Office of the Attorney General would simply remain vacant and any duties that have to be performed by the Attorney General could not be performed.

It is highly unlikely that a majority of the Supreme Court would subscribe to Thpmas' position.

[Poiuyt]

7. It will be an interesting Thanksgiving in the Conway household!

[bitterross]

9. She's a grifter. She's using Trump as much as he does her.

She clearly has no morals, ethics, values, or principles. I suspect she doesn't really disagree with her husband but that the fame and fortune of being in the White House are too much fun. There's the book and movie afterward too.

Don't forget she was Cruz's minion before she was Trump's and said all the horrible things everyone else was saying. Like I said, no principles - other than self-aggrandizement and enrichment.

[colsohlibgal]

10. Really, Awkward

Frosty days coming in that household!

[Yo_Mama_Been_Loggin]

11. It's pretty obvious George Conway does not like Trump

I wonder how that affects the relationship with his wife?