Whitaker Authority Update (A Semi-Scoop)

A petition for certiorari is pending in a case captioned Michaels v. Whitaker. The attorneys for the petitioner, lead by Thomas C. Goldstein, have filed a motion in the Supreme Court challenging the authority of Matthew Whitaker to act as the Attorney General.  (The motion continues to reference the case as Michaels v. Sessions, thus not even conceding that, until the motion is granted or denied,  Whitaker is even the Acting Attorney General.  Goldstein is representing the State of Maryland and filed Maryland’s challenge to Whitaker’s authority reported on here.)

Now, this motion was reported in the Washington Post at 6:48 P.M. last evening, but not only was there was no link to the motion itself, but the article even omitted the name of the case.  Thus, based solely on the article, one could not review the motion or even find it easily.  I found the name of the case on the CNN website and was thus was able to track down the motion.

Why do the news media insist on not providing links to court documents that are the subject of stories they are reporting on?

In any event, score this as a semi-scoop for the RBC.

Update  Mark has reminded me that in my haste to post and thus make the motion filed in the Supreme Court widely available, I had failed to make it clear how the motion filed in the Supreme Court differed from the motion filed by in the Maryland litigation.  First some background on the underlying dispute and then the procedural importance of the motion filed in the Supreme Court yesterday.

The underlying dispute arises out of two statutes that are in seeming conflict:  The Attorney General Succession Act (28 U.S.C. 508) and the more general Vacancies Act (5 U.S.C. 3345 et seq.).  The Attorney General Succession Act sets forth a line of succession for the office of Attorney General as follows:

(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.

(b) When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.

All of those officers described in the Attorney General Succession Act are appointed by the President with the advice and consent of the Senate.  Whitaker, at the time of his appointment as Acting Attorney General, had not been in an office that required the advice and consent of the Senate.

The Vacancies Act has no such “advice and consent” limitation on the person who may be appointed.

The motions filed in both the Maryland litigation and before the Supreme Court raise the same issue:  Did Rod Rosenstein, by virtue of the Attorney General Succession Act, automatically become the Acting Attorney General or does Whitaker’s appointment, by virtue of the Vacancies Act, make him the Acting Attorney General.  As the motion filed in the Supreme Court nicely puts it:

Under the Attorney General Succession Act, Rod Rosenstein is the Acting Attorney General. But under the Vacancies Act, Matthew Whitaker is the Acting Attorney General. Only one of those can be true. Those officials cannot both serve and not serve at the same time — Schrodinger’s Acting Attorneys General.

Motion at 13.

The procedural difference arises out of the difference between Supreme Court review and that of a federal district court.  Why is the question ripe for Supreme Court review?  I think that the motion in the Supreme Court provides a full and adequate answer:

From the outset, Movant freely acknowledges that no characteristic of this case distinguishes it from any other in which Mr. Sessions was a named party. But the fact that the same issue has already arisen in multiple cases and has the potential to arise in thousands more is a feature, not a bug, of this promptly filed motion. There is a significant national interest in avoiding the prospect that every district and immigration judge in the nation could, in relatively short order, be presented with the controversy over which person to substitute as Acting Attorney General.

Often, that will not be a ministerial question, as the Attorney General has numerous personal responsibilities under federal law. Every day, Mr. Whitaker would presently be expected to take a number of significant official acts, including appointing immigration judges, authorizing national security warrants, determining not to enforce federal statutes on the ground that they are unconstitutional, approving or withdrawing regulations, and overseeing the investigation of Special Counsel Robert Mueller. See, e.g., 28 U.S.C. §§ 510-19; 50 U.S.C. § 1804; 8 C.F.R. §§ 1003.9-1003.10; 28 C.F.R. pt. 600.

If this Court declines to resolve this question immediately and instead determines several months in the future that Mr. Whitaker’s appointment was always invalid, then “unwinding” all of those personal orders would be a fraught and disruptive exercise that could embroil the federal courts in innumerable collateral disputes. Cf. 5 U.S.C. § 3348(d)(2) (actions of officials not qualified under Vacancies Act “may not be ratified” later). Deciding this Motion promptly avoids those significant difficulties. Even if this Court now determines that the President in fact validly appointed Mr. Whitaker as Acting Attorney General, that ruling would equally benefit the administration of justice by removing the cloud of uncertainty over the appointment and by resolving the burgeoning number of challenges to it that are otherwise likely to be filed in the lower courts.

Motion at 1-2.

Thus, we have a question that will affect thousands of cases and there’s a real necessity to resolve the issue quickly.  As the motion before the Supreme Court puts it:

Leaving the question to be decided in the first instance by district courts and the courts of appeals would as a practical matter amount to nothing more than different judges “taking sides” while waiting for the issue to reach this Court.

Motion at 3.

The motion in the Supreme Court then points out that the motion in the Maryland action will likely not be argued until December 19, 2019. (My emphasis.)  However, under pertinent Supreme Court Rules, the United States could be required to file its brief by November 26 (with Amicus Briefs due that same day), with the reply brief being due by December 3.  Motion at 3-4 and fn. 1.

The motion in the Supreme Court also differs in one major respect from the motion in the Maryland action.  Specifically, in somewhat veiled language, it highlights the threat to the Mueller investigation if the Government’s position prevails.  In arguing that Congress had not intended that the broad discretion under the Vacancies Act apply to the office of Attorney General:

Congress also would have had in mind President Nixon’s order — issued to a succession of Senate-confirmed officials specified by Section 508 — to fire special prosecutor Archibald Cox. Congress would not have responded to the Saturday Night Massacre by granting the President even broader authority to install his own silent assassin.

Motion at 20 (emphasis added).


9 thoughts on “Whitaker Authority Update (A Semi-Scoop)”

    1. The author of that brief post on the Balkin blog, law professor Gerard Magliocca, is a very sharp fellow. He is a specialist in Constitutional law; you can find his frequent posts on the Concurring Opinions blog.

      If he says the Whitaker appointment is ok, I might change my mind. He says that so far he hasn’t made up his mind.

  1. I hate to say it, but I think I know how this is going to play out, because saying that DAG “may” act as AG does not imply that he must. So if there is an alternative appointment available to the president, there would appear to be nothing to prevent it.

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  3. Regarding your last (emphasized) quote, Stuart, what are the dates of the AG Succession Act and the Vacancies Act? Were either (or both) enacted after the Saturday Night Massacre?

    1. Beginning at page 7 of the motion in SCOTUS: “The now-operative Vacancies Act (the 1998 version) explicitly exempted even more offices, not just the Attorney General. The Vacancies Act now states that it is generally the exclusive mechanism for determining the acting successor for a Senate-confirmed position “unless . . . a statutory provision expressly . . . designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.” 5 U.S.C. § 3347(a)(1). Congress considered but did not adopt the Senate version of that statute supported by the Department of Justice, which would have done the opposite and made the Vacancies Act uniformly applicable to all offices, unless a specific statute expressly precluded its application. S. 2176, 105th Cong. § 2 (1998).”

      Also at p. 7 “In 1953, when Congress reorganized federal personnel law, it specified for avoidance of doubt that the Deputy Attorney General was the “first assistant” for purposes of the Vacancies Act, but provided that the President’s appointment authority under that Act did not apply to the Office of the Attorney General. See 67 Stat. at 636.” The Attorney General Vacancy Act goes back at least to 1874.

      You may want to look at this passage on page 10: “Except in cases of recusal, the Attorney General has the power to control an investigation of the President himself. 28 C.F.R. pt. 600. Absent the Attorney General Succession Act, the President could fire the Attorney General (or demand his resignation), then appoint a hand-picked junior Senate-confirmed officer from an entirely different agency, or a carefully selected senior employee who he was confident would terminate or otherwise severely limit the investigation. Indeed, the President could appoint and then remove a series of hand-picked individuals as Acting Attorney General until one finally acceded to the President’s demands, with the Senate left powerless to intercede. The Attorney General Succession Act makes that impossible; without it, the possibility seems far from theoretical.”

  4. I’m not sure why there is focus on this case, as if the Maryland situation were somehow unique. Isn’t everyone affected by an AG action going to challenge Whittaker’s legitimacy in court? It would seem to be the wise thing to do.

    1. The SCOTUS case is apparently the first case at that level where the issue has been raised. And, the movants made it clear that there are many, many cases where the question is of great moment. That’s why the comments in Balkin’s blog linked to above indicate that SCOTUS is likely to address the issue sooner rather than later.

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