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.
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