New Filings in Whitaker Challenge at the Supreme Court

There were two new filings in the Supreme Court in the challenge to appointment of Matthew Whitaker as Acting Attorney General.

The Solicitor General filed a response to the Petitioner’s Motion in the Michaels case.  The Solicitor General’s response first notes that the petitioner in Michaels:

[D]oes not assert any personal-capacity claims against former Attorney General Lynch or any other governmental official, nor does he assert that the Attorney General had any personal role in any matter relating in any way to his claims. The “real party in interest”  . . . is thus the Department of Justice or the United States itself, not the individual personally performing the duties of the Attorney General at a particular time.

Motion at 5, internal citation omitted.

Thus, “[a]t all times, the suit has run against a particular Attorney General in name only.”

Moreover, because the lawsuit is against a particular Attorney General in name only, there is no urgency in addressing the Constitutional issue at this point.  Further, for that reason, Michaels has no standing to raise the issue of the legitimacy of the Whitaker appointment.

As to the substantive question, the response essentially restates the arguments advanced in the November 14 opinion of the U.S. Department of Justice, Office of Legal Counsel.  Specifically, the Solicitor General argues that the Vacancies Act provides an alternative to the Attorney General Succession Act.  Motion at 14-20.

Finally, the Solicitor General advances what I believe to be a questionable proposition that:

Although the Attorney General is surely a principal officer for purposes of the Appointments Clause, an individual who merely acts temporarily as Attorney General is not. Both
longstanding precedent of this Court and historical practice demonstrate that “the temporary nature of active service weighs against principal-officer status.”

Motion at 21-22.

In contrast to the Solicitor General’s position is the position set forth in the amicus brief of Morton Rosenberg.  Mr. Rosenberg:

[S]erved as an analyst in the American Law Division of the Congressional Research Service for over three decades. In that capacity, he advised Congress on numerous issues of constitutional law, administrative law, and congressional practice and procedure, with a special emphasis on Executive appointments. He is considered a leading authority on the Federal Vacancies Reform Act, having been intimately involved with its enactment.

Rosenberg argues that:

The Vacancies Reform Act was a response to [the] chaos [created when the Office of Legal Counsel sought to create “options” allowing for temporary appointments of lower-level DOJ employees (and others) outside of a congressionally mandated scheme, through creative readings of agencies’ enabling legislation].   [The Vacancies Reform Act was] meant to close down those outside options and limit the Executive’s appointment discretion. It makes no sense to believe that Congress would find such intervention necessary to take away the President’s “option” to appoint lower-level DOJ employees, and yet invite many times the chaos by creating a new “option” for the President to do so for the Attorney General, the most important and powerful Senate-confirmed employee in the Department. Indeed, that illogical premise finds no support in the statute, its legislative history, or prior case law. Instead, each of these sources confirms that the Vacancies Reform Act did nothing to break Congress’s 150-year practice regarding the succession of the Attorney General.

He then concludes simply: “Rod Rosenstein is the Acting Attorney General.”

Amicus Brief at 3-4.


One thought on “New Filings in Whitaker Challenge at the Supreme Court”

  1. But the SG’s point was that it doesn’t matter in this case whether the AG is Wittaker, Rosenstein, or Mickey Mouse, since none of them are or would be directly involved in the case. Unless that claim is refuted, I think Trump/DOJ wins this round, no?

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