Whitaker Appointed Acting Attorney General to Court Challenges

Attorney General Brian E. Frosh, in collaboration with the law firm Goldstein & Russell, litigated the case. Thomas C. Goldstein, a partner of the firm, announced his intention to file the motion Tuesday morning.

Neither the judge in the Texas lawsuit nor Judge Hollander ruled on matters relating to the Affordable Care Act. But as the government is expected to enforce the law on January 1, Maryland said it needed an injunction now to prevent Mr. Whitaker from illegitimately controlling the policy and legal positions of the Department of Justice.

The lawsuit cited Mr. Whitaker's statement, in a 2014 Q & A article, that the 2012 Supreme Court's decision upholding the Affordable Care Act was one of the worst decisions in its history. .

In defending the legal appointment of Mr. Whitaker, the Trump administration referred to the 1998 federal Vacancy Reform Act. It is said that a president can temporarily fill a vacancy for a position that normally requires confirmation from the Senate from any senior official stationed for at least 90 days. As a former chief of staff of Mr. Sessions, Mr. Whitaker meets this criterion.

The complaint filed by the Maryland Court, however, asserts that the law applies to current positions and not to the Attorney General. On the one hand, he noted, another law specifically states that the Deputy Attorney General is next at the Department of Justice. According to the lawsuit, a more specific law prevails in case of conflict with a more general law.

Legislators had good reason to create an exception that gives the president less flexibility to replace the Attorney General, according to Maryland's record. Among them, without this verification, a president under investigation could install a "carefully selected high-ranking employee who, in his opinion, would terminate or otherwise limit" the investigation.

The Maryland filing also cites part of the Constitution, known as the nomination clause, which requires that "senior" officers – very powerful and high-ranking officials, such as the Attorney General – be confirmed by the Senate .