State of Maryland asks judge to declare Rosenstein acting attorney general

[ludin]

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!

dismissed they have no standing.

 

[jmotivator]

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

I didn't say you couldn't have an opinion, I am saying the nincompoops for the State of Maryland that think they should be able to pick the interim AG are, well, nincompoops.

 

[ludin]

Breaking the law is not constitutional.

You're welcome.

no one broke the law.
please know what you are talking about before hand.

 

[bearpoker]

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

Somebody has to.

 

[American]

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.

He's the "acting" AG.

 

[jmotivator]

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 It's entirely appropriate and a good thing for everyone to have his authority either rescinded or made certain.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.

Well, first, no. The Senate doesn't have advise and consent over interim appointments.

"Summary

A vacant presidentially appointed, Senate-confirmed position (herein, “advice and consent
position”) can be filled temporarily under one of several authorities that do not require going
through the Senate confirmation process. Under specific circumstances, many executive branch
vacancies can be filled temporarily under the Federal Vacancies Reform Act of 1998 or by recess
appointment. In some cases, temporary filling of vacancies in a particular position is specifically
provided for in statute. Generally, designation or appointment under one of these methods confers
upon the official the legal authority to carry out the duties of the office. Alternatively, an
individual may be hired by the agency as a consultant. A consultant does not carry the legal
authority of the office, and may act only in an advisory capacity.

In many instances, the functions of a vacant advice and consent office may be carried out
indefinitely by another official, usually the first assistant, under the terms of an administrative
delegation order of the agency head. In such instances, the official carries out these functions
without assuming the vacant office. "

Second, the state of Maryland has exactly 2% of the say in who the eventual AG will be.

 

[Athanasius68]

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"?

Not seeing what Stayn is refering to:
For example, the law is quite clear that a notification of intent to nominate a particular person is in fact a nomination. Or that there are clear demarcations and dates regarding inagurations. The law requires various Congressional commitees to be notified in the event a person appt under the act is in office longer than 210 days, but Congress has authority to review the actions of the executive department.

 

[JasperL]

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

Again, this is a unique situation and neither you, me or anyone else can say with certainty that Whitaker does have proper authority to act as AG for what might be a year, two years. Here's lawfareblog's analysis. It's not as simple as you are asserting.

https://www.lawfareblog.com/matthew...ng-attorney-general-three-lingering-questions

The takeaway is we don't know, because this situation hasn't ever arisen. Might as well get the lawsuit filed and decided so everyone, from the DOJ, to Trump, Congress, litigants of any kind dealing with the DoJ and AG all know what authority Whitaker has or does not have.

 

[JasperL]

I didn't say you couldn't have an opinion, I am saying the nincompoops for the State of Maryland that think they should be able to pick the interim AG are, well, nincompoops.

Good thing no one in the State of Maryland is claiming that authority. Good straw man, though!

 

[JasperL]

He's the "acting" AG.

Correct, he was appointed as acting AG. He didn't get moved to that position by magic..... :roll:

 

[ludin]

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.

It does not say that a Deputy AG cannot be appointed.
You are missing those little words called MAY.
you might not think they mean a great deal but they do.

 

[ludin]

Correct, he was appointed as acting AG. He didn't get moved to that position by magic..... :roll:

doesn't matter. trump has the ability to designate an "acting" AG.
until he finds an actual AG to put up for nomination.

the state of maryland has 0 standing in this case.

 

[hanger4]

Yawn. There are several excellent arguments that it was, coming from conservatives as hard right as Clarence Thomas, no less. It's nothing you'd be interested in.

Super happy I could help you out with that.

The ABA says otherwise;

"The Vacancies Reform Act nowhere says that, if another statute remains in effect, the Vacancies Reform Act may not be used,” the 2007 memorandum opinion states. “Nor would it make sense that the attorney general, through the exercise of a discretionary authority to name a further order of succession after the deputy attorney general and associate attorney general, could prevent the president, his superior, from using his separate authority under the Vacancies Reform Act. Indeed, for this reason, we believe that the president’s action under the Vacancies Reform Act, without more, trumps the attorney general’s designation of a succession under section 508.”

Was Trump's appointment of acting AG Whitaker within the law?

 

[jmotivator]

Good thing no one in the State of Maryland is claiming that authority. Good straw man, though!

The State of Maryland is suing to get Rosenstein appointed as acting AG.

 

[JasperL]

Well, first, no. The Senate doesn't have advise and consent over interim appointments.

Let me just repeat my main point:

"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."

Among those people with no particular axe to grind on this issue include Justice Thomas who takes a very dim view of "temporary" appointments that might last years skirting the advise and consent requirement.

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.”

How do you know how the other 8 justices will rule or even how Thomas will rule, given his past statements? You don't - no one does. It will be a case of first impression, which is why good lawyers without regard to ideology disagree. I've read what are considered 'liberal' lawyers argue he probably does have authority to appoint Whitaker and 'conservative' lawyers argue he does almost surely does NOT, but what characterizes most arguments is, "This is my opinion, who knows?" This is the exact situation best resolved to EVERYONE'S benefit by the courts.

 

[Moderate Right]

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!

What a bunch of nonsense. Now liberal states are going to decide administration positions?

 

[Tanngrisnir]

no one broke the law.
please know what you are talking about before hand.

I do. It's how I know you don't.

Please be less ignorant in terms of things like the law.

 

[Atomic Kid]

It does not say that a Deputy AG cannot be appointed.
You are missing those little words called MAY.
you might not think they mean a great deal but they do.

All that may mean is that a Senate confirmed federal officer from a department other than the DOJ can be appointed attorney general by the President. Which is something that Whitaker isn't. That's why we may need a court of law to determine legality of Whitaker's appointment.

 

[American]

Correct, he was appointed as acting AG. He didn't get moved to that position by magic..... :roll:

Acting implies that a process of choosing a permanent person is coming.

 

[JasperL]

The State of Maryland is suing to get Rosenstein appointed as acting AG.

That would be the result, but the President has several people in DoJ that have been senate confirmed and could serve in an appointed role.

Bottom line is the issue is unresolved. Maryland has a case in front of DoJ and claims Whitaker cannot act as AG in that case. The court needs to and will decide the issue, if not through Maryland's lawsuit then when 1,000 others subject to statutory obligations of the "AG" claim Whitaker had no authority to exercise that authority.

 

[Anagram]

The ABA says otherwise;

"The Vacancies Reform Act nowhere says that, if another statute remains in effect, the Vacancies Reform Act may not be used,” the 2007 memorandum opinion states. “Nor would it make sense that the attorney general, through the exercise of a discretionary authority to name a further order of succession after the deputy attorney general and associate attorney general, could prevent the president, his superior, from using his separate authority under the Vacancies Reform Act. Indeed, for this reason, we believe that the president’s action under the Vacancies Reform Act, without more, trumps the attorney general’s designation of a succession under section 508.”

Was Trump's appointment of acting AG Whitaker within the law?

That's the ABA quoting a 2007 White House memorandum about whether the Vacancies Act is overridden by the Justice Department's succession act.

The ABA article doesn't take a stance on the legality of Whitaker's appointment and that memo doesn't address Clarence Thomas's argument that the Appointments Clause applies to even temporary appointments.

 

[Tanngrisnir]

The ABA says otherwise;

"The Vacancies Reform Act nowhere says that, if another statute remains in effect, the Vacancies Reform Act may not be used,” the 2007 memorandum opinion states. “Nor would it make sense that the attorney general, through the exercise of a discretionary authority to name a further order of succession after the deputy attorney general and associate attorney general, could prevent the president, his superior, from using his separate authority under the Vacancies Reform Act. Indeed, for this reason, we believe that the president’s action under the Vacancies Reform Act, without more, trumps the attorney general’s designation of a succession under section 508.”

Was Trump's appointment of acting AG Whitaker within the law?

No, the ABA does not say otherwise: that's the opinion of a 2007 DOJ memorandum. It's not adjudicated precedent and/or law.

 

[JasperL]

Acting implies that a process of choosing a permanent person is coming.

When, and what happens in the interim? After 210 days can POTUS just appoint another temporary person for the next 210 days?

My point is simple enough - NO ONE knows the answer to these questions. Those most informed say, effectively, "who knows?" because this hasn't ever happened before.

 

[Anagram]

This is an interesting case. I've only skimmed the pleading so far, but it's interesting.

I'm not sure Maryland has a winning argument that the Vacancies Act is overridden by the Justice Department succession law.

I think it may have a persuasive argument that even the Acting Attorney General needs to be someone who has been confirmed by the Senate.

But I haven't looked closely enough to have a final opinion.

 

[jmotivator]

Let me just repeat my main point:

"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."

Among those people with no particular axe to grind on this issue include Justice Thomas. How do you know how the other 8 justices will rule? You don't - no one does. It will be a case of first impression, which is why good lawyers without regard to ideology disagree. I've read what are considered 'liberal' lawyers argue he probably does have authority to appoint Whitaker and 'conservative' lawyers argue he does almost surely does NOT, but what characterizes most arguments is, "This is my opinion, who knows?" This is the exact situation best resolved to EVERYONE'S benefit by the courts.

The authority of the President to appoint interim cabinet positions is absolute. The primary criticism of the Federal Vacancies Reform Act of 1998 that lays the groundwork for interim appointments like this one is that it gives the Senate too much power, not the President.