Here's my problem with Whitaker's appointment... the Appointments Clause of the Constitution (Article II, §2, cl. 2) provides that the President:
"shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:
but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
This indicates that there are two classes of Presidential appointments - inferior officers, over which Congress has the power by law to regulate (such as with the Vacancies Act) and non-inferior, or "principal" officers, who must be confirmed by the Senate. The Attorney General of the United States is undoubtedly such a principal officer, and therefore it is unconstitutional to appoint someone to the office - even on an interim basis - who has not been confirmed by the Senate. Vacancies in the Office of the Attorney General are covered by
28 USC §508. Within this section, the following positions are listed:
1. The Deputy Attorney General (Rod Rosenstein)
2. The Associate Attorney General (currently filled on an interim basis)
3. The Solicitor General (Noel Francisco)
4. Assistant Attorney Generals (Too many to list)
All of these positions require Senate confirmation, and the Senate saw fit to confirm these individuals in the full knowledge that they were prospective Acting Attorney Generals. If the President saw fit to appoint any of these individuals as Acting Attorney General, I would have no problem with it. Similarly, if the President saw fit to give Matthew Whitaker an interim appointment to an inferior office (such as Associate Attorney General), I also would have no problem with it. The problem, as I see it, that as an unconfirmed Justice Department employee, his interim appointment as a principal officer is in sharp violation of the Appointments Clause of the Constitution, and that any decisions he renders as Acting Attorney General have a high potential to be nullified in future court challenges. To give you an example of what I'm talking about, I'll refer you to
NLRB v. SW General, Inc., specifically Justice Thomas' concurring opinion in which he ruled that the General Counsel of the NLRB is a "principal officer" of the Government and therefore his interim appointment to the post would have been unconstitutional, even if it did not violate the letter of the Vacancies Act (which it did).