So lets look at this as a hypothetical. A President demands his AG resign, then installs a temporary AG. He does not nominate anyone to the Senate.
After 210 days, he installs another temporary AG.
Lather, rinse, repeat. It’ll only take 5 temporary AGs to go a full Presidential term without having an attorney general confirmed by the Senate.
The wording of the legislation is not the end-all.
The Court will decide.
I don’t disagree with what you’ve said.
Against the spirit of the law – yes. But that’s the way the law is written. Only two sections I’ve been able to find that deal with sucess of attorney general (the one first part says “may”. Second part says if the DAG is NOT AVAILABLE) then these are the choices. Second section details the time they can remain in office, and the time of service/pay grade they must have.
So the courts rule the statute unconstitutional then what? President can just appoint an acting with no time limit nor time of service/pay grade? Or the office just stays empty without an acting head?
Court can’t change the definition of “may”.
They dont have to find the entire Act unconstitutional to find this appointment unconstitutional.
The DAG is Senate-confirmed. According to the Vacancies Act, the default successor is the first Assistant- in this case, the DAG.
The office of the DAG was created with the specific purpose of creating continuity.
Can you link the law your referencing so I can read the wording please and thank you.
So I’m not 100% sure what you’re asking for. If you meant the Vacancies Act, here you go:
(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) 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;
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.
Paragraph 3 gives the option other than the DAG
It does. But the DAG is the default successor. No “may” there.
The DOJ response to Maryland motion…
If anyone is interested, the writer is Steven “Torture Memos” Engel, Assistant Attorney General…
Props to anyone who can find the flaws with the citation of 28 USC 508…
Not withstanding paragraph one
THAT says he can do it in defference to paragraph one.
Did you mean “defiance”? I’m not sure I understand what you’re saying.
“Notwithstanding paragraph 1” means that the President has the power to overrule paragraph 1.
essentially that’s what I’m saying, and apparently what you’re agreeing with. paragraph 3 says the if he chooses he can ignore paragraph 1 and choose paragraph 3. And he has done exactly that.
But that section has never been used before. It hasn’t been challenged yet.
This will go to the Court.
Senate approval is over rated. Past presidents only did it because they couldn’t handle the political fallout if they didn’t do it. Donald Trump doesn’t care about that. He’s right. Voters don’t care about Senate advice and consent.
And what reasoning would the court determin that paragraph 3 is invalid?
…and [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States
So the DAG hasn’t received advice nor consent of the senate to be AG correct?
So the first part would be unconstitutional as well.
The Deputy AG is individually confirmed by the Senate specifically with the understanding that if the AG died or was incapacitated, the DAG would replace him.
Constitutionally, the DAG could be considered an “inferior officer”, and would not need Senate confirmation - except in case of succession. Which is why it’s Senate confirmed.
