Michaels v Whitaker (Possible Supreme Court vehicle for resolution of the current Acting Attorney General controversy)

Plenty of other cabinet members have been handled the same way.

AG is a different ballgame though. DOJ seems to be treated with special gloves in that regard, i’m guessing because it’s a halfway house between the executive and judiciary branch.

We’ll find out regardless, seems like there’s more than few lawyers both on the left and the right who are raising serious procedural objections to Whitakers appointment.


Given he’s the first (and only other period) since 1866, i’m guessing there’s a good reason beyond mere norms. But we shall see.

Except that it’s not a different ballgame.

No, it’s not.

Again, the lawyers seem to disagree.

Conway has been leading the charge, partly in protest to the silence of his federalist peers. We’ll see how that pans out.

If the ruling makes it to the SC I think it may surprise.

Remember when conservatism was about reading William F. Bucklely or some ■■■■■ Now they are like the Celebrity Apprentice guy actually owns and your’re snowflake if you criticize the policies that John Bolton put in his head during one of the commercial breaks between Fox & Friends.

“The lawyers” are guilty of motivated reasoning.

The crux of the argument is that the general terms of Vacancies Act of 1998 (as codified at 5 USC 3345) are superseded by the Attorney General Sucession Act of 1977 (as codified at 28 USC 508), which unambiguously names the Deputy AG as Acting AG in case of vacancy.

Well, yeah. That’s how our legal system works.

The attorneys for one side make their argument based on their goals. The other side does the same. The judges decide whose arguments are more compelling in the context of the Constitution, statutory law and common law.

If both exist in the USC, how does a law passed in 1977 supersede a law passed in 1998. Technically supersede means that a newer replaces the older.

Now the 1998 law may have created a conflict with the 1977 law if the later law didn’t repeal or replace portions of the 1977 law.

“Supercede” is the wrong word.

There is a conflict of laws between the statutes - the Vacancies Act did not repeal or modify the Attorney General Sucession Act (although it was debated as to whether it should).

According to accepted rules of statutory construction, when two statutes conflict, the more specific statute controls.

Thanks for the clarification.



There is significantly more to the argument being made, but that’s the general idea.

Of course, if you say the Vacancy act didn’t specifically repeal the AG statute it may well have effectively done so as the primary rule is that the later statute is definitive when there is a conflict. The vacancy act applied to all federal agencies, and did not exclude the DOJ, so at the least its provisions should be in effect where they conflict with the AG law.
To say it did not apply to the DOJ one would have to go outside of the law itself to determine the intent of those who passed that law…which a court might or might not be willing to do.

He has no such option.

In any event, the Solicitor General’s Office actually will handle the case, as well as replying to the Motion to Substitute.

The above link is the “appendix” to the Motion to Substitute. Among other things, it contains the White House Counsel’s Memorandum in support of Whittaker’s appointment.

The motion as submitted makes many references to the intent of the drafters of the laws.

When there are two statutes that directly contradict each other, the rule of construction is generally to find the more recent statute definitive, that is true. But there is no direct conflict here - particularly since the Vacancies Act specifically states that other statutes regarding succession remain valid.