In the New York Times, Neal Katyal and George Conway argue that the President’s appointment of Matthew Whitaker as Acting Attorney General is unconstitutional: the problem, they say, is that Whitaker, who was Attorney General Sessions’ chief of staff, was never confirmed by the Senate; thus he’s not eligible to fill a position that requires Senate confirmation.

At NBC News, Steve Vladeck argues persuasively that the appointment complies with the Federal Vacancies Reform Act, and adds:

There is also a constitutional objection [citing Katyal and Conway] to having someone who has not been confirmed by the Senate serve on even a temporary basis in such a senior position. But as Justice Antonin Scalia explained in 2014, “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.” [quoting Scalia’s separate opinion in NLRB v. Noel Canning].

That’s right as far as it goes: Scalia cites the Act of May 8, 1792, Section 8, which provides:

And be it further enacted, That in case of the death, absence from the seat of government, or sickness of the Secretary of State, Secretary of the Treasury, or of the Secretary of the War department, or of any officer of either of the said departments whose appointment is not in the head thereof, whereby they cannot perform the duties of their said respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons at his discretion to perform the duties of the said respective offices until a successor be appointed, or until such absence or inability by sickness shall cease.

But maybe the 1792 Act was unconstitutional.  Katyal and Conway cite Justice Thomas’ opinion in NLRB v. Southwest General, where he argued that appointment of the acting General Counsel of the NLRB required Senate approval:

The officer in question was a principal officer, [Justice Thomas] concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

This was also an appointment under the Federal Vacancies Reform Act, so Justice Thomas was saying that the FVRA, as applied to principal officers, is unconstitutional.

Scalia’s opinion and Thomas’ opinion can be reconciled if one concludes that, as to principal officers, the acting appointment can only be given to a person who has already been confirmed to another office by the Senate.  We could say that the Senate implicitly confirmed the person to an office whose duties included (a) whatever duties are assigned to that office; plus (b) acting temporarily in another office if the President chooses.  Noel Canning didn’t involve the specific issue of whether un-confirmed persons could assume the duties of offices that ordinarily require confirmation, so Scalia may have been speaking loosely and not meant that the President could designate anyone as an acting officer (although that’s what the 1792 Act says).  And Southwest General didn’t involve appointment of a person previously confirmed to a different office, so Thomas may not have been thinking about that possibility.

But that doesn’t help Whitaker, who wasn’t confirmed by the Senate for another office (at least not recently; Katyal and Conway concede he was confirmed for a different office, since relinquished, in 2004).

One more possibility: maybe an acting position isn’t an “office” and so designation of that person isn’t an “appointment” for constitutional purposes.  Note that the 1792 Act doesn’t say the President can “appoint” an acting officer; it says the President may “authorize any person or persons at his discretion to perform the duties” of the vacant office.  This is also true of the FVRA, which says the President “may direct” a person to perform duties of the office but doesn’t say “appoint.”

Maybe that’s coincidence, or maybe it’s Congress trying to draft around the appointments clause.    In any event, I’m not sure it works, because it still leaves a un-confirmed person doing things that are supposed to be done by a confirmed person.  Thomas didn’t consider this question in Southwest General but he necessarily assumed (without discussion) that designating an acting general counsel is an “appointment.”

So maybe the (acting) Attorney General indeed is unconstitutional.

(Thanks to Andrew Hyman for raising the issue, but he doesn’t necessarily endorse the analysis).

NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey

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