One day after President Donald Trump named Matthew Whitaker acting attorney general in the wake of Jeff Sessions' resignation, some experts are questioning the constitutionality of the appointment.
Whitaker, who was Sessions' chief of staff, has not been subject to a Senate confirmation -- something some believe is a requirement for an acting attorney general.
"...with deference and respect to what the president's trying to do -- he has every right to have whoever he wants run the Justice Department -- he has chosen someone who does not qualify under the law to be the acting attorney general," said Fox News legal commentator Andrew Napolitano.
Why might this be unconstitutional?
According to Napolitano, there are three ways a person can become acting AG:
- The deputy attorney general is named acting attorney general by executive order
- A Department of Justice employee who has received Senate confirmation for their position is named acting AG
- Someone is named acting AG by recess appointment
Because Whitaker's position as chief of staff didn't require confirmation, it's possible he cannot serve as acting attorney general.
Others agree with Napolitano
Attorneys Neal Katyal and George Conway (husband of White House advisor Kellyanne Conway) wrote in The New York Times today that a "principal officer," defined as someone who reports only to the President, must be confirmed by the Senate.
According to Article II, Section 2, Clause 2 of the Constitution:
"...and [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint, Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for..."
University of California-Berkeley law professor John Yoo, who worked with the George W. Bush administration, agrees that Whitaker cannot serve in the "principal officer" role of attorney general.
Some think the appointment is legal
Justice Department spokeswoman Sarah Isgur Flores said the appointment is legal under the Federal Vacancies Reform Act of 1998, according to Axios.
Under the VRA, any senior DOJ official who has already served in a high-level position for 90 days can be appointed acting attorney general. DOJ officials argue that the VRA takes precedence over the Attorney General Succession Act, which puts the deputy attorney general, and next the associate attorney general, in the line of succession.
Questions remain about the application of the Constitution, the precedence of seemingly contradictory laws, and the true definition of a "principal officer."