Last week, after demanding the resignation of Attorney General Sessions, President Trump named Matthew Whitaker, Sessions's chief of staff, to be the "Acting" Attorney General. This designation is consistent with a federal statute, the Federal Vacancies Reform Act, but it raises a constitutional question. The Constitution requires the Attorney General to be confirmed by the Senate; Whitaker was not confirmed by the Senate; does the same requirement apply to the "Acting" Attorney General?
Neal Katyal and George Conway have an op-ed in the New York Times arguing that the appointment is unconstitutional. Steve Vladeck has an op-ed in the same paper arguing the contrary. More information and sources are available from Marty Lederman and Andrew Hyman and Michael Ramsey.
1. If you asked me to consider this purely as a matter of text and structure, I doubt that the President can name an "Acting" Attorney General without Senate confirmation (or a recess appointment -- which is unavailable here). On any given day, the office of Attorney General is a "principal" office, so it should require a principal appointment, one with Senate confirmation, to occupy that office even for a day.
2. That said, I would not go as far as Justice Thomas in his concurrence in NLRB v. Southwest General, who suggested that naming an existing officer to a new acting position always requires a new appointment. Instead, I would say that if somebody already holds a Senate-confirmed office, and if they are covered by the Vacancies Reform Act or another similar statute, they can be named acting AG.
3. Why? As a formal matter, an existing statute that authorizes, say, the Secretary of Defense to be a candidate for "acting" Attorney General, we can think of that as actually redefining the duties of the Secretary of Defense. The Secretary of Defense's job is to "be the secretary of the Defense, and also serve as Attorney General [or Treasury Secretary or...] on an as-needed basis." So long as the statute was in place at the time of the initial appointment, and so long as the appointee has met the constitutional requirements for both jobs, Congress can define the offices this way.
And I think the rule is consistent with what Alexander Hamilton said was the purpose of the Appointments Clause, namely to have the Senate provide a "check upon a spirit of favoritism in the President, and .... prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." Once the Senate has served as a filter against family connection and personal attachment for the first appointment, that makes the acting appointment less risky.
4. All of that said, I have serious doubts about this position. In United States v. Eaton, 169 U.S. 331 (1898), the Supreme Court disagreed with what I've written above, holding that a non-confirmed officer could temporarily exercise the powers of a principal officer without constitutional problem:
Because the subordinate officer is charged with the performance of the duty of the superior for a limited time, and under special and temporary conditions, he is not thereby transformed into the superior and permanent official. To so hold would render void any and every delegation of power to an inferior to perform under any circumstances or exigency the duties of a superior officer, and the discharge of administrative duties would be seriously hindered.
5. More importantly than a single Supreme Court case, it seems that the elected branches have also disagreed with this restrictive view for a very long time. In 1792, the Second Congress enacted a statute, 1 Stat. 279, 281, providing:
That in the case of the death, absence from the seat of Government, or sickness of the Secretary of State, Secretary of the Treasury, or Secretary of the War department, or of any officer of the said departments whose appointment is not in the head thereof . . . it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons at his discretion to perform the duties of the said respective offices until a successor be appointed, or until such absence or inability by sickness shall cease.
In other words, the President could name acting cabinet secretaries with no apparent restriction. If one thinks, as James Madison did, that longstanding practice can "liquidate" the meaning of constitutional provisions, statutes like this (and its successors) may be enough to tip the balance in favor of these acting appointments.
6. Are there any limiting principles? Eaton and the longstanding practice both contradict a categorical rule against non-confirmed acting appointments to principal offices. But perhaps there is a middle position. Walter Dellinger stresses on Twitter that Eaton concerned "'special and temporary conditions' ... The Eaton situation arose half way around the world in Siam!" A very recent student note by Garrett West has the intriguing suggestion that such acting appointments cannot exceed the length of an equivalent recess appointment -- a year or two, depending on who you ask. And I have not studied the actual practice of acting principal officer appointments, or the constitutional reasoning accompanying them, to see if any coherent principles emerge.
7. But suppose that my first instincts were right, and the precedent and practice are not, and Whitaker's acting appointment is unlawful. Do we have an Attorney General? It looks like we do, since a separate statute, 28 U.S.C. 508, provides that "In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office." That would be Rod Rosenstein. It may well be that a valid appointment under the Federal Vacancies Reform Act can displace Section 508, but if Whitaker's appointment is invalid, it seems that Rosenstein is actually the acting AG.
Presumably it will not be very long until somebody subject to Whitaker's authority finds a way to bring this dispute to court.