Well, if that is actually in the statute, then I guess the ruling will stand.
I don’t agree. Here is another take on this. I believe the Obama appointed judge’s decision will be overturned on appeal.
https://www.lawfareblog.com/ken-cuccinelli-and-federal-vacancies-reform-act-1998
Like “Hillary is no longer running for office so why go after her now?”
If wasn’t for lawyers, you wouldn’t need them.
So, congress wrote law with loopholes, and a Democrat judge doesn’t like the way some smart republicans have navigated through them.
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The relevant text of the statute:
(a) If an officer of an Executive agency . . . whose appointment to office is
required to be made by the President, by and with the advice and consent of
the Senate, dies, resigns, or is otherwise unable to perform the functions and
duties of the office—(1) the first assistant to the office of such officer shall perform the
functions and duties of the office temporarily in an acting
capacity subject to the time limitations of section 3346;(2) notwithstanding paragraph (1), the President (and only the
President) may direct a person who serves in an office for which
appointment is required to be made by the President, by and with
the advice and consent of the Senate, to perform the functions
and duties of the vacant office temporarily in an acting capacity
subject to the time limitations of section 3346; or(3) notwithstanding paragraph (1), the President (and only the
President) may direct an officer or employee of such Executive
agency to perform the functions and duties of the vacant office
temporarily in an acting capacity, subject to the time limitations
of section 3346, if—(A) during the 365-day period preceding the date of death,
resignation, or beginning of inability to serve of the
applicable officer, the officer or employee served in a
position in such agency for not less than 90 days; and(B) the rate of pay for the position described under
subparagraph (A) is equal to or greater than the minimum
rate of pay payable for a position at GS-15 of the General
Schedule.
Subsection (2) is inapplicable as Cuccinelli was not a PAS Officer at the time of his designation.
Subsection (3) (A) is inapplicable as Cuccinelli had not served for 90 days.
Subsection (3) (B) is not applicable as the conditions of Subsection (3) (A) were not satisfied.
So only Subsection (1) is at issue here.
the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;
Starting near the end of page 29 of the Opinion of the Court linked to in the OP post and continuing to near the top of page 41 of that Opinion, Cuccinelli lays out a well structured and devastating argument as to why Cuccinelli was not lawfully appointed, essentially based on the fact that he was NEVER first assistant and never would have been first assistant, particularly given the guidance that was issued in conjunction with his appointment.
I cannot layout that argument any better than Judge Moss did and I refer anybody to read those pages of the Opinion of the Court.
As for the blog post, Judge Moss addressed all the points raised by the writer and sufficiently refuted any notion of a legal loophole in the statute.
Taking a textualist approach, as I do, Cuccinelli was clearly unlawfully appointed.
But if somebody was to take an originalist approach, which I feel unnecessary in this situation, but if one were to take that approach, one would reach the same result, just more emphatically. Clearly the INTENT of the statute is to prevent exactly what the Trump administration was attempting, avoidance of the Senate advice and consent clause. So if you take intent and legislative history into account, you get an even more emphatic result in support of the view that Cuccinelli’s appointment was unlawful. Chief Justice Roberts and Justices Alito and Thomas incorporate elements of originalism in their judicial philosophy and they will not be able to ignore the intent of the statute, even if somehow they did find the wording lacking.
Also, Judge Moss’s decision is fully consistent with recent Supreme Court jurisprudence regarding the appointments clause.
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i disagree. the courts penchant is to allow the executive to manage itself. I think it more likely they will find his initial appointment was not in keeping with the law; however, there is nothing stopping the president from newly appointing him as the current 1st assistant in the reorganized office.
What makes you believe that?
I read your link - it doesn’t say whatever it is you think it does.
Smart lawyers in the Trump administration found and exploited a loophole. An Obama appointed judge disagreed with their interpretation of the legislation. I have no doubt that if Obama had done the same, that same judge would have ruled differently.
I still believe the administration’s action will be upheld on appeal.
My link is dated, back when Trump first appointed Cuccinelli. My appeal comment is mine alone, based on the use of a loophole pointed out in the article.
Oh, oh…
