Trump’s Appointment of the Acting Attorney General Is Unconstitutional

The president is evading the requirement to seek the Senate’s advice and consent for the nation’s chief law enforcement officer and the person who will oversee the Mueller investigation.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

.. He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional.

.. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president. No one else in government is that person’s boss. But Mr. Mueller reports to Rod Rosenstein, the deputy attorney general. So, Mr. Mueller is what is known as an inferior officer, not a principal one, and his appointment without Senate approval was valid.

But Professor Calabresi and Mr. Trump were right about the core principle. A principal officer must be confirmed by the Senate. And that has a very significant consequence today.

It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.

.. the the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.

.. If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom Mr. Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.

.. Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he 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.

.. What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government.

Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. He has now been vested with the law enforcement authority of the entireUnited States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys.

.. We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but Mr. Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.

.. Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in a position of such grave responsibility. The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is Mr. Trump himself, and the president is hopelessly compromised by the Mueller investigation.
.. As we wrote last week, the Constitution is a bipartisan document, written for the ages to guard against wrongdoing by officials of any party. Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals. As Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” He added “they knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”

We must heed those words today.

John Yoo: Trump’s Appointment of Whitaker ‘Unconstitutional’

Yoo said that the Supreme Court has made it “clear” that the president cannot appoint a “principal officer” without getting them confirmed by the Senate.

“The Constitution says that principal officers must go through appointment with the advice and consent of the Senate. In Morrison v. Olson, the Supreme Court made clear that the attorney general is a principal officer. Therefore, Whittaker cannot serve as acting attorney general despite the Vacancies Act (which does provide for him to be acting AG) — the statute is unconstitutional when applied in this way.”

This same argument was made by constitutional lawyer David Rivkin, attorneys Neal Katyal and George Conway, husband of presidential Kellyanne Conway, and Supreme Court Justice Clarence Thomas, who wrote in 2016 that even a temporary appointment of a principal officer that is not confirmed by the Senate would be unconstitutional.

 

Why senators claim to believe Ford — but still side with Kavanaugh

And finally there was Sen. John Cornyn (R-Tex.), who told reporters Thursday afternoon, “I found no reason to find [Ford] not credible.”

.. As the strength of the year-old Me Too movement is put to its most public and crucial test yet, Republicans have the political savvy to recognize that they must pay lip service to it, even as they actively campaign against its aims. You could view these concessions as politically motivated to the point of being meaningless. But according to social science research into the complex interaction between social behaviors and privately held views, even self-interested nods at #MeToo may indicate some progress for the movement.

Recent, highly publicized cases of sexual harassment and assault have rapidly created a new norm in which it’s toxic to dismiss alleged survivors. Kavanaugh’s allies are responding to that norm, even if they don’t fully agree with its principles. Over time — and with some serious caveats — norms can influence private views, suggesting that even conservative beliefs on sexual harassment are likely to be shaped at least in the long term by #MeToo.

.. There are many, many examples of norms shifting, sometimes quite abruptly, as institutions tip in one direction or social movements come to fruition: same-sex marriage becoming broadly acceptable after the 2015 Supreme Court decision

.. people are more likely to recycle after they learn — through an article or in conversation — that many of their peers are recyclers.

.. “If we understand that the wind is changing direction, we are likely to adjust our behavior — sometimes even when we don’t personally agree.”
.. There are plenty of signs that conservative beliefs on sexual abuse have barely shifted since the Clarence Thomas hearings of 1991, such as the apparent assumption among Republicans that Ford’s story would be just a “hiccup” that they could “plow right through.
.. Indeed, it may be like similar “evolutions” on racism, which find people eschewing the n-word in public while remaining as virulent as ever in private.
.. studied how people learn prejudices based on what’s socially acceptable within a certain group — and how they change their views once the group changes.
.. Crandall and his colleagues showed how white college freshmen, entering a new setting in which prejudice against black people was less socially acceptable than in their home towns, learned over the following year to question racist thoughts. “When norms change, or when people join groups that have different norms, there is conflict — with the outside world at first, and then a more internal struggle to fit in better,”
.. The often-jarring conflicts we’re seeing between the public behavior and apparent private beliefs of those who support Kavanaugh may represent this initial, college-freshman stage of adapting to a society with changed norms on sexual assault. As #MeToo continues to shape norms around believing survivors, more conservatives could come around as well — not merely when it comes to action but also in their attitudes.

.. Unfortunately, prejudices about gender appear to be especially intractable

.. In cross-cultural work examining prejudice, she has found less sexism in more-developed countries, suggesting that sexism diminishes along with development.

.. “People have women in their families, so changing stereotypic gender roles is more disruptive than for other biases,”

The Supreme Court’s Legitimacy Crisis

the 54 senators who voted to elevate Judge Gorsuch had received around 54 million votes, and the 45 senators who opposed him got more than 73 million. That’s 58 percent to 42 percent.

.. And if the Senate confirms Brett Kavanaugh soon, the vote is likely to fall along similar lines, meaning that we will soon have two Supreme Court justices who deserve to be called “minority-majority”: justices who are part of a five-vote majority on the bench but who were nominated and confirmed by a president and a Senate who represent the will of a minority of the American people.

.. Two more current members of the dominant conservative bloc, while nominated by presidents who did win the popular vote, were confirmed by senators who collectively won fewer popular votes than the senators who voted against them.

.. Clarence Thomas, who was confirmed in 1991 by 52 senators who won just 48 percent of the popular vote, and Samuel Alito, confirmed in 2006 by 58 senators who garnered, again, 48 percent of the vote.

.. If fate were to hand President Trump one more opportunity to put a justice on the court before 2021, it would almost certainly again be a bitterly contested and close vote, and it would probably leave us with a majority of Supreme Court justices, five, who were confirmed by senators who received a minority share of the vote.

.. no Democratic president has ever taken office after losing the popular vote. And second, justices nominated by Democrats have never been confirmed by such narrow margins. Of the four liberals currently on the court, all received 63 votes or more, from senators winning and representing clear majorities of their voters.

.. we’re on the verge of having a five-member majority who figure to radically rewrite our nation’s laws. And four of them will have been narrowly approved by senators representing minority will.

.. Bill Clinton and Barack Obama did not nominate jurists who had left paper trails of judicial extremism or dropped other hints that their jurisprudence would be radical.

.. outsourced the judicial-selection process to right-wing groups like the Federalist Society and the Heritage Foundation and twice nominated judges with an eye cast largely toward how happy they would make conservative evangelicals.

.. Republicans are doing to the Supreme Court what they have already accomplished in Congress. There, through aggressive gerrymandering, they’ve muscled their way to a majority even as their candidates have sometimes received collectively fewer votes than Democrats. And now they’re doing it to the court, by breaking the rules (Merrick Garland) and advancing nominees who are confirmed by legislators representing minority support.