The legal challenge to the acting attorney general’s appointment is a trap
On Monday, Senators Richard Blumenthal (D-CT), Sheldon Whitehouse (D-RI), and Mazie Hirono (D-HI), filed a lawsuit alleging that Donald Trump’s appointment of Matthew Whitaker as acting attorney general is unconstitutional.
The lawsuit is fairly likely to prevail — or, at least, a lawsuit of this sort is fairly likely to win five votes on the Supreme Court. It also potentially presents a grave danger to the next Democratic presidency and to the future viability of the entire Executive Branch. Moreover, if the three senators win their case, it is far from clear what they win in the long run.
Even if Whitaker cannot serve as acting attorney general, Trump could still potentially install Whitaker as a recess appointee. And even if that fails, there is no shortage of hard right attorneys Trump could lawfully place in charge of the Justice Department.
In a little over two years, however, America could very well have a Democratic president who needs to fill her new administration over the objections of a Republican Senate. In that fairly likely future, Blumenthal v. Whitaker could potentially give Senate Majority Leader Mitch McConnell (R-KY) everything he needs to sabotage that Democratic administration right out the gate.
The legal case against Whitaker
Blumenthal and his two colleagues rely on two interconnected arguments — one rooted in the text of the Constitution and another rooted in its structure — to attack Whitaker’s appointment.
The textual argument is strong and stands a good chance of prevailing in the Supreme Court. The Constitution provides that 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…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.
The Constitution, in other words, distinguishes between “inferior officers” who can be appointed without Senate approval, and what are known as “principal officers,” who must be confirmed by the Senate.
In Edmond v. United States, the Supreme Court explained that an inferior officer is someone whose “work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” The attorney general, in other words, is a principal officer because the head of the Department of Justice answers directly to the president, rather than to another presidential appointee. And the Constitution requires anyone serving as a principal officer to be confirmed by the Senate.
Ordinarily, this isn’t a big deal. There are other Senate-confirmed attorneys working in the Justice Department, including Deputy Attorney General Rod Rosenstein, and any one of these officials may constitutionally act as attorney general. Whitaker, however, last served as fired Attorney General Jefferson Beauregard Sessions’ chief of staff, and that is not a Senate-confirmed job. So Trump’s decision to place Whitaker in his former boss’ chair appears to violate the Constitution.
The Blumenthal plaintiffs augment this textual argument with a structural one. “Giving the President the ‘sole disposition of offices,’” the plaintiffs’ lawyers write, quoting Alexander Hamilton, “would result in a Cabinet ‘governed much more by his private inclinations and interests’ than by the public good, and could result in the appointment of Officers who had ‘no other merit than that of…possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.’”
The framers, according to Hamilton, viewed the requirement that principal officers be confirmed as “’an excellent check upon a spirit of favoritism in the President, which ‘would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, [and] from personal attachment.’”
The problem with this structural argument, however, is that it is not true that the Constitution establishes a government where the president would never be able to appoint a principal officer without first seeking Senate approval. Under the Constitution “the President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”
So even if the Constitution does not permit Trump to appoint Whitaker in the particular way that this particular appointment happened, it clearly permits a situation where a unconfirmed official serves as a principal officer in a temporary capacity.
Much ado about very little
This recess appointments power may permit Trump to install Whitaker in an entirely lawful way — although it is likely that a coalition of Democrats and relatively moderate Republicans would block that move.
In NLRB v. Noel Canning, the Supreme Court held that the Senate could effectively strip the president of his recess appointments power by holding “pro forma” sessions — fake sessions where a single Senator gavels the Senate into session then immediately closes that session — every three days. The current Senate has held these sessions under Trump, in part thanks to relatively moderate Republicans like Sen. Lisa Murkowski (R-AK).
When the Democratic House is seated in January, moreover, that will likely shut down Trump’s ability to make recess appointments altogether. The Constitution provides that “neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days,” and Noel Canning establishes that a three-day adjournment is not long enough to trigger the president’s recess appointments power.
But even without the recess power, Trump shouldn’t have too much trouble finding a hardline conservative within the Justice Department who is both Senate-confirmed and likely to do Trump’s bidding on the Mueller investigation — Solicitor General Noel Francisco is an obvious candidate.
So, while the Blumenthal litigation may be able to lock Whitaker out of power, it won’t stop Trump from installing an acting attorney general who will run the Department of Justice as a hotbed for conservative ideology — and potentially for Republican partisanship.
Yet, while the best case scenario for Blumenthal and his colleagues is a court order replacing Whitaker with a Senate-confirmed-ideologue-to-be-determined-later, the future implications of the Blumenthal case could be profound.
After Noel Canning, the Senate can effectively shut down the president’s recess appointment’s power. That means that, in the very likely event that there is a Democratic president and a Republican Senate in 2021, that president can forget about making recess appointments.
Blumenthal, however, could prevent the next president from filling cabinet-level jobs with acting appointments as well (there is an 1898 Supreme Court case suggesting that presidents can make acting appointments “for a limited time and under special and temporary conditions,” but that case dealt with an inferior officer). In the world contemplated by Blumenthal, cabinet secretaries likely can only be filled by a Senate-confirmed officer.
Which brings us back to Mitch McConnell. McConnell views legislative norms as quaint little antiquities to be tossed out the moment they interfere with his political goals. As Senate Republican Leader, he made unprecedented use of the filibuster, and even tried to shut down entire agencies to spite unions and thwart banking regulation.
Under the world contemplated by the Blumenthal plaintiffs, McConnell could potentially shut down the entire Executive Branch by refusing to confirm anyone to any Senate-confirmed position. In such a world, the next president would have no one (except for maybe holdovers from the Trump administration) to run her cabinet departments. And many of those departments cannot perform essential functions without a leader in place.
Matthew Whitaker is a crank
Just in case there’s any doubt, the three plaintiffs in Blumenthal have good reason to want Whitaker out of the attorney general’s chair. Whitaker’s beliefs are a hodgepodge of discredited ideas offered up by the losers in many of the most important moral inflection points in American history.
Also, Whitaker appears to be such a mediocre lawyer that he doesn’t understand that some of his ideas contradict each other.
In 2013, Whitaker claimed that the state of Iowa can “nullify Obamacare.” It can’t. Whitaker opposes Marbury v. Madison, the seminal 1803 Supreme Court decision holding that federal courts can strike down unconstitutional federal laws. Yet, in the very same 2014 interview where Whitaker criticized Marbury, he also attacked the Supreme Court for not declaring the New Deal unconstitutional.
It should be obvious that one cannot simultaneously believe that courts lack the power to declare laws unconstitutional, and also that the Supreme Court should have declared certain laws unconstitutional. Yet Whitaker claims to hold both of these beliefs, somehow.
Whitaker also sat on the board of a company that was shut down by the Federal Trade Commission due to allegations that it scammed customers. When one former customer threatened to file a complaint against this company, Whitaker responded with a threat of his own, claiming that such a complaint “could result in ‘serious civil and criminal consequences.’”
Indeed, Whitaker’s primary qualification for to lead the Justice Department appears to be that he’s criticized Special Counsel Robert Mueller’s investigation into potential criminal activity by Trump’s campaign.
Blumenthal may prevent Whitaker from acting as attorney general. But the most likely short-term effect of Blumenthal will be to replace this fairly incompetent crank with a much smarter and more capable ideologue. And the longer-term effect could very well be a choke hold on the next Democratic president.