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November 8, 2018

HMM: John Yoo: Whitaker’s appointment as acting Attorney General is unconstitutional.

Well, bring on Janice Rogers Brown then. I haven’t had time to really think about this, but my initial impression is that Yoo is right. On the other hand, we don’t want the Constitution to be a dead letter — it must grow and change with the times, and perhaps the times demand that we be more . . . flexible and pragmatic about appointments. Yeah, that’s it. Flexible and pragmatic. And modern!

UPDATE: Andrew McCarthy says Yoo is wrong: “Matthew Whitaker joined the Trump Justice Department as Sessions’s chief of staff in October 2017. The date is relevant. The president has named him as acting attorney general under the Vacancies Reform Act of 1998 (the relevant provisions are codified at Sections 3345 and 3346 of Title 5, U.S. Code). There has been some commentary suggesting that because Whitaker was in a job (chief of staff) that did not require Senate confirmation, he could not become the “acting officer” in a position (AG) that calls for Senate confirmation. Not so. The Vacancies Act enables the president to name an acting officer, who may serve as such for 210 days, as long as the person named has been working at the agency or department for at least 90 days in a fairly high-ranking position. Whitaker qualifies.”

That would be the Clinton-Era Vacancies Reform Act.