both Andrew Napolitano and george conway (kellyannes husband) agree.
the appointment must be someone who has been confirmed to a position in the justice department
according to conways oped in the ny times (co written by former us solicitor general)
President 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,”
except if whitaker is illegal than any actions he takes during his term would be illegal. I believe the AG is the one who technically signs DOJ briefs. if hes illegal then any action he takes is invalid
Interesting point. I have no idea how the courts would handle that if it came up. I suspect there is a way they could handle it. If not, then they need to have the issue decided by the Supreme Court immediately.
Everybody can be on board but there are still arguments both ways…the main being that the Vacancy Reform Act of 1998 was passed after the AG Succession act, and it would allow the appointment of Whitaker. It certainly looks like a SC decision.
As to whether an invalid appointment would make all decisions invalid, this is as close as I could find.
Obama made some appointments to a labor board that were not valid. The people who were affected by decisions made by those people claimed there was not a quorum and the decisions were not valid. It looks like the labor board “reheard” those decisions, but quickly validated all the decisions that had been passed by the not valid members.
He saw him on TV and thought he did a good job defending him. That was all it took for Trump to decide he wanted him to be the top LEO in the entire Country. This is what some “people” voted for, believe it or not.
This is literally the decision referenced in the NYT piece. Did you read it?
"Much of the commentary about Mr. Whitaker’s appointment has focused on all sorts of technical points about the Vacancies Reform Act and Justice Department succession statutes. But 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. It is one thing to appoint an acting underling, like an acting solicitor general, a post one of us held. But those officials are always supervised by higher-ups; in the case of the solicitor general, by the attorney general and deputy attorney general, both confirmed by the Senate."
