Trump's Unconstitutional Appointments
President Donald Trump and his administration have made headlines within the legal network quite often since the President’s inauguration in 2017. There is no doubt that the Trump administration’s stance on immigration law and policy has been a hot topic these past couple of years. In recent months, the administration has seen changes to both the Attorney General and to the Secretary of Homeland Security. When Matthew Whitaker was appointed acting Attorney General back in November 2018, many legal scholars and news outlets were taken aback by the grounds behind his appointment. Some attorneys and legal scholars have contemplated the legality of the Attorney General’s appointment. Going further, some immigration attorneys have considered whether the appointment of 31 new immigration judges by then-acting Attorney General, Matt Whitaker were unconstitutional. President Trump has always had a rough time convincing the public of the reasoning behind his actions.
Immigration attorney Michael Ibrahim believes that the there may be a plausible argument that then-AG Whitaker’s March 15, 2019 immigration judge appointments were unconstitutional. The Department of Justice’s “Executive Office for Immigration Review” made an announcement appointing 31 new immigration judges. But what if Whitaker’s designation as Acting Attorney General was unlawful? Would that mean that his appointments were also unlawful?
First, under the Appointments Clause of the U.S. constitution (article II, section 2, clause 2), principal officers of the United States must be appointed “with the Advice and Consent of the Senate.” The Attorney General is such a “principal officer” because he holds the highest law enforcement position in the United States. The Senate, however, did not confirm Whitaker either as Acting Attorney General or in his prior position as Chief of Staff to former Attorney General Jeff Sessions. One could argue that Attorney General Whitaker’s designation violated the text of the Appointments Clause.
Next, Attorney General Whitaker’s designation also violated the law governing succession to the Office of the Attorney General. The United States Code, Title 28, Section 508 specifically addresses “a vacancy in the office of Attorney General.” Specifically, the relevant statute describes a line of mandatory succession, starting with the Deputy Attorney General, and followed by the Associate Attorney General, Solicitor General, and the Assistant Attorneys General, in that order. The line of succession does not include the former Attorney General’s Chief of Staff as a possible successor.
Finally, in designating Matt Whitaker, President Trump relied on the more general Federal Vacancies Reform Act (“FVRA.”) The FVRA provides “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of” a Senate-confirmed officer. However, it explicitly does not apply if another, specific “statutory provision expressly . . . designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity,” As discussed above, the U.S. Code, Title 28, Section 508 expressly designates specific successors to the Attorney General. Therefore, the FVRA does not apply, President Trump’s invocation of it to designate Whitaker is void, and it thus follows that Whitaker’s designation violated federal law.