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As Matthew Whitaker took over the charge of the Justice Department this week, Democrats and some Republicans questioned whether he was legally elected to act as attorney general. No short answer to the questions, so the answer is not clear.
The Constitution requires the President to obtain the Senate's "advice and consent" when appointing the firm's members and other principal "officers of the United States." In dividing the appointment between the executive and the Congress, the framers hoped to limit cronyism and self-government interest.
The Constitution also allows the President to make temporary appointments when the Senate is in recess.
At the same time, the Constitution assigns the power of attorney to establish various federal agents. The current rules for filling most offices are spelled out by the Vacancies Reform Act of 1998. At the time, then Sen. Fred Thompson (R., Tenn.) Said on the floor of the courthouse.
"In 1973, the Justice Department, seeking a temporary FBI director in the midst of the Watergate scandal, appointed L. Patrick Gray without complying with the terms of the Vacancies Act," said the late Mr. Thompson, who co- sponsored the bill.
Another co-sponsor, Sen. Robert Byrd (D., W.Va.), invoked both Proverbs and Gibbon's "Decline and Fall of the Roman Empire" in calling upon the Senate 20 years ago to reassert its powers. "Let us go to the threat posed by circumventions by the executive branch of the appointments clause," Mr. Byrd said.
The law is important, because it says that it can not be used in an effective way.
The question may not be resolved until Mr. Whitaker, or the DOJ under his authority, takes action against some individual or group that then argues that Mr. Whitaker was not properly appointed.
The Vacancies Reform Act also provides that the "first assistant" becomes the acting officer. That is what happened on Jan. 20, 2017, the day of President Trump's inauguration, when Attorney General Loretta Lynch resigned and deputy attorney general, Sally Yates, became acting attorney general. (President Trump dismissed 10 days later after being unchallenged.)
Ms. Yates already held a Senate-confirmed position, which the Vacancies Act lists as a qualification for service as an acting officer; Mr. Whitaker does not. While he has had a Senate-confirmed position, he has attorney for the Southern District of Iowa, which does not count under the law.
Another category of individuals appointed to the position of a member of the Senate shall be appointed to the position of senior officer at the same time for at least 90 days during the preceding year, at a senior-level pay scale .
Mr. Whitaker apparently qualified under that definition. But critics say that it was only intended to apply to subordinate officials. Those who say Mr. Whitaker was improperly appointed to a key argument for their case.
Supreme Court precedent distinguishes between "senior officers," who should be appointed by the President with Senate approval, and "inferior officers," who may be placed through other methods authorized by Congress.
"Senate Minority Leader Chuck Schumer (D, N.Y.) said in a letter to the President Friday.
In response, a Justice Department official said Mr. Trump's authority to install Mr. Whitaker was presided by a 2003 opinion of the department's Office of Legal Counsel, which concluded that President George W. Bush could be a non-confirmed employee of the Office of Management and Budget as the acting director.
The OMB director, like the attorney general, is a senior officer. The 2003 opinion avoided that problem by defining an acting director as an "inferior officer."
That document was written by Ed Whelan, prominent Republican lawyer who then headed the Office of Legal Counsel. The title appearing under his signature: acting assistant attorney general.
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