Trump's attorney general appointment challenged at Supreme Court

[Eugene]

Source: Reuters

WASHINGTON (Reuters) - The fight over President Donald Trump’s appointment of Matthew Whitaker as acting attorney general has reached the U.S. Supreme Court, with lawyers in a pending gun rights case asking the justices on Friday to decide if the action was lawful.

Critics have said the Republican president’s appointment of Whitaker, who now will oversee Special Counsel Robert Mueller’s investigation into Russia’s role in the 2016 U.S. election, on Nov. 7 to replace the ousted Jeff Sessions as the chief U.S. law enforcement official violated the Constitution and federal law.

Lawyers for Barry Michaels, who filed a lawsuit in Nevada challenging a U.S. law that bars him from buying a firearm due to prior non-violent criminal convictions, decided to make Whitaker’s appointment an issue in their pending appeal before the high court because Sessions was named as a defendant in the case.

The lawyers told the justices that Deputy Attorney General Rod Rosenstein should be the acting attorney general.

-snip-

SUPREME COURT NOVEMBER 16, 2018 / 5:07 PM / UPDATED 8 MINUTES AGO
Lawrence Hurley
3 MIN READ


Read more: https://www.reuters.com/article/us-usa-trump-whitaker/trumps-attorney-general-appointment-challenged-at-supreme-court-idUSKCN1NL2KV

[Squinch]

1. I guess its time for Kavanaugh to earn his keep.

[RockRaven]

2. The case involving Maryland was likely to be decided against Whitaker, this (maybe) short-circuits

the chance for that ruling to happen. Damn.

[machoneman]

3. I don't think Cheeto expected this fast of a filing nor from this quarter. Hopefully...

more suits will quickly follow, all challenging Whittaker's illegal appointment for more causes than I can even think of right now.

[Haggis for Breakfast]

4. The Attorney General Succession Act

which passed the Senate in 1998, clearly states the order of succession should the position of AG be vacated (for whatever reasons). The next in line here is Rod Rosenstein. The Appointments Clause of Article II (of the Constitution) specifically mandates that the Senate provide "advice and consent" on the appointment of the Attorney General. Further, the Vacancies Reform Act (1998) stipulates that dismissal (or firing) of an AG does not create a vacancy, but a resignation would. Sessions did resign but was requested to do so, which kills that argument right there.

By appointing Whitaker and failing to get confirmation, trump is, in effect, nullifying the authority and power of the Senate. It is both unconstitutional and illegal for the highest ranking law enforcement officer in the country to bypass Senate confirmation for that position.

This sets up a scenario where Mueller and/or Rosenstein could refuse to acknowledge Whitaker, invoking the illegality of his appointment, and using that as justification to refuse to comply with any order he issues. This will send the whole matter to the Supreme Court. Remember that Whitaker has stated his opposition to Marbury v. Madison. The Supreme Court is NOT going to undermine their own authority to please trmp.

I believe that trmp is attempting to create a Constitutional crisis.

[onenote]

5. The issues raised by his appointment are more complicated than that.

Last edited Sat Nov 17, 2018, 01:19 AM - Edit history (1)

For example, the Constitution does not merely require that the Senate consent to the appointment of a principal officer.It exclusively grants the power to nominate someone to exercise the duties of an executive officer to the President. Under the Attorney General Succession Act, Congress has substituted its judgment for that of the President as to who should exercise the duties of a principal officer. That raises a significant constitutional issue. In addition, nothing in the VRA "stipulates" that the dismissal or firing of an officer covered by the Act does not create a vacancy. The legislative history suggests the opposite and distinguishing between situations where an officer is asked to resign and situations where the officer offers his or her resignation without having been requested to do so would pose practical problems. Indeed, at the beginning of every president's administration, the incoming president typically requests that hundreds of appointees of the previous president tender their resignation. If that did not allow the resulting vacancies to be filled via the VRA, there would be chaos (or the incoming president would be forced to keep in place the appointees of the previous president until the vacancy could be filled by presidential appointment and senate confirmation.

There is a way out of this mess. First, the courts can agree that the Attorney General Succession Act overrides the VRA. Then, in order to overcome the constitutional concerns raised by the Attorney General Succession Act, the court could agree with the government's position that temporary replacements filling a vacancy in a principal office are themselves not "principal officers" and thus can be appointed by the Senate not the president. In order to avoid a constitutional issue, the court also could read into the Attorney General Succession Act a requirement that such appointments be for a reasonable/limited period, citing the VRA time limitations as guidance.

I have no idea how the courts will rule, but i wouldn't be surprised if the result is alone those lines.

[Haggis for Breakfast]

6. It's a mess alright.

Also, in 2007 the Justice Department OLC suggested that the Attorney General Succession Act is countered by the VRA. Not everyone agrees with that. Laurence Tribe recently weighed in on this, suggesting that the Supreme Court needs to rule Whitaker's appointment invalid as it is in their own best interests to do so.

It will be an interesting ride, for sure.