Matthew Whitaker and the Constitution’s Appointments Gaps

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One week ago, US Attorney General Jeff Sessions resigned at the “request” of President Donald Trump, who wasted no time in designating Matthew Whitaker as Acting Attorney General, pending the nomination and Senate confirmation of a full-time replacement. Although hardly Edward Levi (President Gerald Ford’s extremely distinguished AG), Whitaker does not completely lack professional qualifications. He served for over five years as a US Attorney in Iowa and, until last week, was the Chief of Staff to Sessions.

However, Whitaker’s chief qualification for the position to which Trump named him appears to be his well-known hostility to Special Counsel Robert Mueller’s Russia investigation. For that reason, Trump’s selection of Whitaker has raised alarm bells. Assuming Whitaker fully displaces Deputy AG Rod Rosenstein in supervising the Mueller investigation, will Whitaker shut it down? Will he starve Mueller of funds, as he once suggested in his role as a TV commentator? Will he disallow indictments of the likes of Donald Trump, Jr. or others in the president’s orbit? Will he bury Mueller’s report and then go to court to prevent the House of Representatives from subpoenaing and releasing it?

Is the Whitaker Appointment Legal?

Meanwhile, is it even clear that Trump had the legal authority to name Whitaker? A federal statute states that when a vacancy in the office of AG occurs, the Deputy AG becomes the Acting AG. Rosenstein, not Whitaker, is the Deputy AG. Presumably, Trump’s lawyers have advised him that another federal statute, the Vacancies Reform Act, allows him to override the default selection of the Deputy AG. As I explained on my blog last week, that position is “not completely crazy,” but it is hardly a matter of settled law.

Even assuming the Vacancies Reform Act allows the president to bypass the Deputy AG, there is a second statutory question. The Act authorizes the president to designate acting officers when the incumbent “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” Did Sessions “resign”? As a formal matter yes, but both his letter and news reports indicate that Sessions was effectively fired by Trump. In my blog post, I suggested that, absent extraordinary circumstances, a formal resignation should be treated as a resignation, but here too, the legal question is open.

Finally, there is a constitutional question. Article II requires that what have come to be known as principal officers must be confirmed by the Senate. Writing in the New York Times last week, Neal Katyal and George Conway argued that because Trump bypassed two Senate-confirmed high-ranking Justice Department officials—Deputy AG Rosenstein and Solicitor General Noel Francisco—Trump’s choice of Whitaker (whose Senate confirmation as a US Attorney lapsed when he left that office in 2009) was unconstitutional. In response (and also in the Times), Stephen Vladeck pointed to the Supreme Court’s 1898 ruling in United States v. Eaton, which allows someone who has not been confirmed by the Senate to act in the role of a principal officer “for a limited time, and under special and temporary conditions.” Vladeck also contended that a firm rule requiring Senate confirmation for acting principal officers could hamstring government, especially at the beginning of a new administration.

Who has the better of this argument? My blog post last week and an exchange of comments on it with Martin Lederman (whose Just Security essay and Twitter thread also reward reading), indicate that the issue is unsettled, but that further inquiry into the historical practice of acting officers could be informative.

That history goes back to the Founding Era. As Justice Antonin Scalia observed in a concurrence in a 2014 case, “Congress can authorize ‘acting’ officers to perform the duties associated with a temporarily vacant office—and has done that, in one form or another, since 1792.”

Did the Framers Goof?

Justice Scalia’s observation points to an apparent deficiency in the Constitution. If, as he says and everyone today seems to agree, the Constitution allows acting officers, why doesn’t the Constitution mention them?

The text of the Constitution sets out three mechanisms for appointment of federal officers: (1) Principal officers must be nominated by the president and confirmed by the Senate; (2) “but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments;” and (3) the president may make appointments when the Senate is in recess.

One might therefore think that anyone appointed to exercise power on behalf of the United States must be chosen through one of those three methods. One would be wrong, however.

For one thing, since the nineteenth century, the Supreme Court has acknowledged a category of mere government employees, who are neither principal nor inferior officers, and can thus be appointed by means other than those set out in the Constitution’s Article II. And, as we have seen, the Eaton case vindicated the longstanding practice of “acting” officers. How can such decisions be squared with the constitutional text?

Longstanding practices can provide insight into the meaning of the Constitution. That’s especially true for a law enacted in 1792, when Congress included some of the Constitution’s framers, and all members of Congress would have remembered the then-recent ratification debate. Perhaps most members of Congress thought (as some modern commentators argue) that temporarily carrying out the duties of an office does not make one a holder of that office, and thus one need not be appointed to do so.

Even so, there would need to be a limit. Under the literal terms of the 1792 statute, the president could name an acting officer to perform all of the duties of an office “until a successor [is] appointed,” without setting a time limit. Taken at face value, the 1792 statute would allow a president to completely circumvent the Constitution’s Appointments Clause. If that is consistent with the Appointments Clause, then it looks like the framers goofed. They would have done better to specify authority for and limits on acting officers in the Constitution itself.

The Constitution is not a Machine that Will go by Itself

Yet to fault the framers for the Constitution’s incompleteness is to misunderstand how the Constitution works. Chief Justice John Marshall famously wrote in McCulloch v. Maryland in 1819 that the very nature of the Constitution “requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” McCulloch concerned the scope of powers given to Congress by Article I, Section 8, but Marshall’s point applies more broadly. The Constitution is a sketch, an outline; the details needed to make a system of government work have to be filled in.

That picture of the Constitution as requiring tending and operationalizing contrasts sharply with James Russell Lowell’s famous characterization of it as “a machine that would go of itself.” The framers gleaned from their study of history the lesson that democracies tend to devolve into dictatorships. For that reason, Federalist 51 explains, the Constitution, while relying on “the people” as “the primary control on the government,” implements “auxiliary precautions,” that is, checks and balances.

Trump’s de facto firing of Sessions and his naming of Whitaker as Acting AG may well be unlawful. If so, and assuming timely litigation by a party with legal standing, it may fall to a court to oust Whitaker. But even assuming Trump’s brazen moves did not violate the letter of the law or of the Constitution, his actions clearly violated their spirit. If the courts fail to provide a check, Congress can. Whether it does so will say more about America today than at the Founding.

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Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.