State of Maryland asks judge to declare Rosenstein acting attorney general

[Skeptic Bob]

1. The Constitution permits recess appointments. A person appointed in such a situation has full authority of his or her office without Senate confirmation. So the idea that the Constitution bans unconfirmed individuals as heads of departments isnt true.

2. Sec 508 speaks of the attorney general "may" appoint a temporary placeholder, and gave a a few titles. It doesnt say 'must.' Nor does the attorney general have the final say who is named as the successor: that authority belongs to the president alone. And since there was no attorney general, 508 seems moot.

3. The Vacancy Act permits the president to name a senior person from the department. Whittaker fits the bill.

A couple things that make all of this arguable. First, “vacancies”in the Vacancy Act do not apply to firings. Yes, Sessions submitted a resignation letter but as stated in the letter it was specifically at the President’s request. So a case can be made it doesn’t meet the criteria. Second, the part of the Vacancy Act that allows a nonconfirmed member of the department to serve could be ruled to be unconstitutional in itself since it bypasses Senate confirmation. It has never come up before because no President has tried this before.

 

[RAMOSS]

So some appointed judge should be doing a legally elected president's job. Right. :roll:

Considering that there are good reasons to say that the Whitigar appointment is against the law, well, yes. He is not in a position that was approved by the Senate.

 

[Athanasius68]

A couple things that make all of this arguable. First, “vacancies”in the Vacancy Act do not apply to firings. Yes, Sessions submitted a resignation letter but as stated in the letter it was specifically at the President’s request. So a case can be made it doesn’t meet the criteria. Second, the part of the Vacancy Act that allows a nonconfirmed member of the department to serve could be ruled to be unconstitutional in itself since it bypasses Senate confirmation. It has never come up before because no President has tried this before.

The Constitution permits unconfirmed individuals to head departments. Granted, Whitraker's appt. was not a recess appt. But the concept is the same-- the president appts somebody who is in that office for a limited period of time with full suthority of that office.
The vacancy act doesnt speak to firings either way. But it seems to be covered when it speaks of vacancies in a generic sense.

 

[dcsports]

No there isn't. In addition to the Constitution's appointment clause the DOJ has it own specific statute for succession.

28 USC Section 508 - (a) 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, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.

(b) When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.

That's not about succession (who takes the office) so much as who exercises the authority in the case of a vacancy or the AG isn't otherwise available. In this case, there's no longer a vacancy... the office was filled with an acting AG under the statute that covers that.

 

[Rexedgar]

The Judicial Branch can't change The Constitution.

Neither can the White House.

 

[American]

State of Maryland asks judge to declare Rosenstein acting attorney general


https://www.nbcnews.com/politics/ju...re-rosenstein-acting-attorney-general-n935446

“The state of Maryland plans to ask a federal judge on Tuesday for an order declaring that Rod Rosenstein is the acting attorney general — not Matt Whitaker, who was appointed to that position last week after the forced resignation of Jeff Sessions.”



The White House lawyers have to have their hands full!

Show were judges have power to appoint executive branch officials.

 

[American]

Neither can the White House.

How did the WH change the Constitution?

 

[Athanasius68]

No there isn't. In addition to the Constitution's appointment clause the DOJ has it own specific statute for succession.

28 USC Section 508 - (a) 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, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.

(b) When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.

1. 3345 Part 3 gives the president the authorization.

2. Part 508 uses the term "may" not 'must'.

 

[NeverTrump]

No, we have a bunch of nincompoops who can't seem to grasp that the power to appoint an acting AG resides entirely with the office of President.

When there is a full appointment to be the new AG the state of Maryland will have two votes to have their say like every other state.

:lamo Why is this your defense? You think the President has a good pick??? :lamo

 

[apdst]

Neither can the White House.

They didn't.

 

[JasperL]

No law was broken. So Maryland is wasting everyone's time.
Glad to offer my assistance.

There's a lot of legitimate controversy on whether Whitaker can serve as acting AG and perform those duties without Senate approval.

Bottom line is it should be resolved by the courts so there's no ambiguity. The AG is required to do so many things that are subject to court challenge and reversal (forgetting his role in the Special Counsel investigation) if he's declared ineligible that it's really to everyone's benefit, including the Trump administration's, to create certainty about Whitaker's authority.

We've really never seen anything like it in history, which is why no one can say for certain whether the POTUS can, if he wants, get around the requirement for Senate confirmation by appointing a lackey to a position for at least 210 days. Then perhaps name another lackey to that post for the next 210 days, and so on.

 

[JasperL]

And there were excellent arguments that it is quite legal.

That's true, but how can the country know without the court deciding on a legitimately unknown legal question?

Say he signs a FISA warrant. Does he have that authority? We should KNOW that, not guess at it, unless you're willing to roll the dice that any evidence gathered gets thrown out because Trump's AG didn't have the authority, invalidating the warrant.

 

[jmotivator]

:lamo Why is this your defense? You think the President has a good pick??? :lamo

You still don't seem to realize that you have no say in who the President picks as acting AG.

As I said, when the President picks a new AG there will be a Senate vote. Your state will get two votes.

 

[NeverTrump]

You still don't seem to realize that you have no say in who the President picks as acting AG.

As I said, when the President picks a new AG there will be a Senate vote. Your state will get two votes.

So I can't have an opinion??? Careful you are sliding into dictator whore territory.

 

[JasperL]

No, we have a bunch of nincompoops who can't seem to grasp that the power to appoint an acting AG resides entirely with the office of President.

When there is a full appointment to be the new AG the state of Maryland will have two votes to have their say like every other state.

And you're ignoring the Senate's obligation to advise and consent to that appointment.

The bottom line is people with no particular axe to grind here just disagree on the law. It's entirely appropriate and a good thing for everyone to have his authority either rescinded or made certain. As I said to someone else, do we really want to risk warrants getting tossed and the evidence discarded if/when Whitaker is determined to be ineligible to sign them? Someone subject to a warrant that the law requires be signed by the AG or his designate WILL SUE, so why not get this out of the way now?

Seems to me the best thing would be for the SC to take it on an expedited basis and resolve the issue for everyone's benefit.

 

[JasperL]

Show were judges have power to appoint executive branch officials.

Show where Trump can bypass the advise and consent requirement by appointing a series of hacks never put to the Senate for confirmation.

 

[Atomic Kid]

That's not about succession (who takes the office) so much as who exercises the authority in the case of a vacancy or the AG isn't otherwise available. In this case, there's no longer a vacancy... the office was filled with an acting AG under the statute that covers that.

That's a ridiculous assessment. Of course it's about succession. It's all about succession. Rosenstein was the "acting AG", not Whitaker. The statute further provides that if both the attorney general and the deputy attorney general are unavailable or unable to serve, the associate attorney general “shall act” as attorney general. The statute also authorizes the attorney general to “designate” the solicitor general and the various assistant attorney generals in “further order of succession.” Under the current attorney general order, the solicitor general is next in the line of succession. Whitaker is neither the solicitor general as well.

Currently there is a confirmed deputy attorney general—Rod Rosenstein—but not a confirmed associate attorney general. Section 508 consequently provides that upon the vacancy in the office of attorney general caused by Sessions’s resignation, Deputy Attorney General Rod Rosenstein “may exercise all the duties” of the attorney general.

 

[Hatuey]

Oh we loved the Biden and the Reid rules it was the Democrats that were crying about them [emoji38]

Nah, I actually don't. Responding to them is essentially a futile exercise in the Socratic Method; something they're quite immune to, it would appear.

See what I mean?

Sent from Trump Plaza's basement using Putin's MacBook.

 

[Atomic Kid]

1. 3345 Part 3 gives the president the authorization.

2. Part 508 uses the term "may" not 'must'.

Then it's high time for it to be tested in a court of law.

"In 2001, the Duke Law Journal published an article criticizing the nomination process and the Federal Vacancies Reform Act of 1998. The author, Joshua Stayn, asserts four constitutional problems with the act:

The act allows the Senate to confirm or reject people whom the president never officially nominated.

The act allows the Senate to treat a president's written notice of intent to nominate as a nomination, despite the fact that the president has yet to and may never nominate the named individual to an advice and consent position. Such treatment of a president's written notice of intent to nominate violates both the "formalist" and "functionalist" Supreme Court decisions on federal appointment issues.

The act gives the Senate an impermissible role in making recess appointments. This second constitutional flaw is that it illegitimately interferes with the president's exercise of constitutional authority to make recess appointments.

The act encroaches on the president's ability to nominate and control subordinate executive officers. It obligates each agency head to report any vacancy, temporary appointment, or official nomination directly and immediately to Congress, without clearance from the President.

The act transfers too much of the Senate's power in the appointment process to the president in the year following a presidential transition. The act authorizes a newly elected president to appoint acting officers to every advice and consent position in the executive branch for up to 300 days after either inauguration day or the date on which the vacancy occurred.

The act permits newly elected presidents to engage independently in precisely the kind of favoritism the framers sought to prevent, it is unconstitutional"

There would clearly appear to be a number of constitutional issues as definitive interpretation issues. Such as at this point halfway through his first term can Mr Trump still be considered "newly elected"?

 

[Tanngrisnir]

What law is he breaking? Be sure and post supporting text.

Asked and answered. Please try and follow along more closely.

 

[American]

Show where Trump can bypass the advise and consent requirement by appointing a series of hacks never put to the Senate for confirmation.

He's not appointing, he's firing or accepting a resignation.

 

[Athanasius68]

Show where Trump can bypass the advise and consent requirement by appointing a series of hacks never put to the Senate for confirmation.

Article 2 sec 2 clause 3 of the Constitution. Recess appts. The Vacancy Act seems to build upon this

 

[Athanasius68]

That's a ridiculous assessment. Of course it's about succession. It's all about succession. Rosenstein was the "acting AG", not Whitaker. The statute further provides that if both the attorney general and the deputy attorney general are unavailable or unable to serve, the associate attorney general “shall act” as attorney general. The statute also authorizes the attorney general to “designate” the solicitor general and the various assistant attorney generals in “further order of succession.” Under the current attorney general order, the solicitor general is next in the line of succession. Whitaker is neither the solicitor general as well.

Currently there is a confirmed deputy attorney general—Rod Rosenstein—but not a confirmed associate attorney general. Section 508 consequently provides that upon the vacancy in the office of attorney general caused by Sessions’s resignation, Deputy Attorney General Rod Rosenstein “may exercise all the duties” of the attorney general.

Sec 3 of 3345 permits the president to appoint an employee of the department as acting head. In other words, the law says the president can bypass the deputies in naming an acting head.

 

[Deuce]

Is... is that a thing a state government has standing to do?

 

[JasperL]

He's not appointing, he's firing or accepting a resignation.

Of course he's appointing someone. Otherwise, if the AG is fired, resigns, dies, is incapacitated for any reason, there is a designated line of succession, and in this case Rosenstein who has been confirmed by the Senate takes over as acting. In that case his authority is unquestioned, certain.

We've seen AGs come and go for 200 years - we've NEVER had a guy not approved by the Senate named as acting AG in similar circumstances. This is new ground, which is why there is so much uncertainty about his authority, or lack of it.