As per the 11/8/18 Lawfare blog by John E. Bles, “There remains an open question of whether it is constitutional to rely on of the FVRA Federal Vacancies Reform Act to appoint an official not serving in a Senate-confirmed position to act as a principal officer, such as the attorney general. Some—including Justice Clarence Thomas—have argued that an acting principal officer must be appointed in conformance with the Appointments Clause, i.e., by and with the advice and consent of the Senate: “Appointing principal officers under the FVRA … raises grave constitutional concerns because the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate.”
It is my opinion only that (FVRA) Federal Vacancies Reform Act, a statute that provides guidance on how to fill an important federal job, that requires US Senate confirmation, does not apply when that official has been fired. The fact that the party was forced to resign does not change the fact that the Attorney General Jeff Sessions was fired.
In addition, when the DOJ US Department of Justice has a vacancy, the FVRA is supplanted by another statute (28 U.S.C. § 508) or the Attorney General Succession Act which provides guidelines as to succession, which states that the Deputy Attorney General Rod Rosenstein should be the one taking Mr. Sessions’ position.
With regards to the Federal Vacancies Reform Act, the president has previously used this statute to get around the succession requirements in the US Veterans Administration by appointing Robert Wilkie as its temporary head who also favors the privatization of the VA healthcare system and who’s been Senate confirmed in 2017 for a Defense Department position. President Trump argued that the former VA Head David Shulkin had resigned and so, he was free to act as per the Federal Vacancies Reform Act. But Mr. Shulkin was very specific in stating that he was fired, and he was forced to present his resignation letter to the president. If the rules for succession had been followed, David Shulkins 2nd in command, Tom Bowman would be the VA secretary.
In July 2018, Robert Wilke’s appointment was approved and Senate confirmed to be the VA secretary.
This explains the recently fired Attorney General Jeff Sessions wording in his resignation letter, that he was resigning at the behest of President Trump.
Here’s the rest of the story…
On November 13, 2018, Charlie Savage of the NY Times penned the following report, “Whitaker’s Appointment as Acting Attorney General Faces Court Challenge”
“In the days since President Trump ousted Attorney General Jeff Sessions and declared that he was installing Matthew Whitaker as the acting attorney general, many critics have challenged Mr. Whitaker’s fitness for the job. Some (are) calling his very appointment illegal.”
“Now, Mr. Whitaker’s appointment is facing a court challenge. The State of Maryland is expected to ask a federal judge on (11/13/18) for an injunction declaring that Mr. Whitaker is not the legitimate acting attorney general as a matter of law, and that the position — and all its powers — instead belongs to the deputy attorney general, Rod Rosenstein.”
“Mr. Trump may not “bypass the constitutional and statutory requirements for appointing someone to that office,” the plaintiffs said in a filing obtained by The NY Times.”
“The legal action escalates the uproar surrounding Mr. Trump’s installation of Mr. Whitaker as the nation’s top law-enforcement officer, from criticism of his basic credentials and his views on the Russia investigation to challenges to the legality of his appointment. Last week, Chuck Schumer of NY, the Senate’s top Democrat, sent a letter demanding to know why Mr. Trump chose an “unconfirmed political appointee” as acting attorney general, rather than follow the (28 U.S.C. § 508) Justice Department’s statutory line of succession.”
“Maryland is asking a judge — Ellen L. Hollander of the Federal District Court for the District of Maryland, — to rule on who is the real acting attorney general as part of a lawsuit in which it sued Mr. Sessions in his official capacity. Because Mr. Sessions is no longer the attorney general, the judge must substitute his successor as a defendant in the litigation, so she has to decide who that successor legally is.”
“The stakes are extraordinary. The acting attorney general is the most powerful law enforcement official in the US and wields tremendous influence, from overseeing criminal and national-security investigations to deciding how to enforce immigration, environmental and civil rights laws.”
“The head of the Justice Department also supervises Robert S. Mueller III, the special counsel investigating whether Mr. Trump’s associates conspired with Russia in its election interference and whether Mr. Trump tried to obstruct that inquiry. A Trump loyalist, Mr. Whitaker has been an outspoken critic of the Russia investigation.”
“Maryland filed the underlying litigation in response to a separate lawsuit by Texas and several other Republican-controlled states challenging the Affordable Care Act. They argue that the law’s so-called individual mandate to obtain health insurance, which the Supreme Court upheld in 2012, became unconstitutional after Congress last year reduced its tax penalty to nothing.”
“In June, the Justice Department under Mr. Sessions agreed with Texas and said key parts of the law — including the provision that protects people with pre-existing conditions — must be struck down. In response, Maryland filed its own lawsuit in September. It asked Judge Hollander to declare that the contested parts of the insurance law are constitutional and to direct the government, and Mr. Sessions in particular, to enforce it as written.”
“Neither the judge in the Texas lawsuit nor Judge Hollander has ruled on the Affordable Care Act issues. But because the government’s enforcement of the act is set to change on Jan. 1, Maryland said it needed an injunction now to prevent Mr. Whitaker from illegitimately controlling the Justice Department’s policy and legal positions.”
“Among other things, the lawsuit cited Mr. Whitaker’s declaration, in a 2014 Q. and A., that the 2012 Supreme Court ruling upholding the Affordable Care Act was one of the worst rulings in the court’s history.”
“In defending Mr. Whitaker’s appointment as lawful, the Trump administration has pointed to the Federal Vacancies Reform Act, a 1998 statute. It says that a president may temporarily fill a vacancy for a position that normally requires Senate confirmation with any senior official who has been in the department for at least 90 days. As Mr. Sessions’s former chief of staff, Mr. Whitaker meets that criteria.”
“But Maryland’s court filing argues that the law applies to routine positions, not to the attorney general. For one thing, it noted, another statute (specifically says the deputy attorney general is next in line at the Justice Department. A more specific law (28 U.S.. § 508), the lawsuit argues, takes precedence when in a conflict with a more general law.”
“There were good reasons for lawmakers to create an exception that gives the president less flexibility when it comes to replacing the attorney general, the Maryland filing argues. Without that check, a president under investigation could install a “carefully selected senior employee who he was confident would terminate or otherwise severely limit” the inquiry.”
“The Maryland filing also cites a part of the Constitution, known as the appointments clause, which requires “principal” officers — very powerful and senior officials, like the attorney general — to have been confirmed by the Senate.”
“The 2003 opinion relied on an 1898 Supreme Court case about a man who was appointed the acting American consul in modern-day Thailand when the Senate-confirmed consul became sick, and no Senate-confirmed deputy consul was available.”
“But the Maryland court filing argues that the circumstances of the 1898 case were too different from today’s situation. It notes that the office of attorney general did not become vacant through an unexpected emergency, and that several Senate-confirmed Justice Department officials, like Mr. Rosenstein, are available.”
“The power of the attorney general “calls for the highest levels of integrity and personal judgment, prerequisites safeguarded by the Constitution’s command that principal officers be subject to the oversight and check provided by Senate confirmation.”