True Federalist (진정한 연방 주의자)
Ernest
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Posts: 42,144
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« on: November 18, 2018, 02:32:12 PM » |
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I would say the issue here is two-fold.
1. Is the "head of a Department" an "inferior Officer" in the context of Article II Section 2 Clause 2. If so, then everything else is moot and Whitaker's appointment is constitutional. But if not, then we get to the second question:
2. Is an acting official subject to the same constitutional requirements as the official himself when it comes to their appointment? If so, then it's not just the Vacancies Reform Act, but every act that specifies the handling of the powers of a head of a Department on an interim basis which is constitutionally suspect.
As to the first question, the language in 1 Stat. 28 (establishing the Department of Foreign Affairs), 1 Stat. 49 (establishing the Department of War), 1 Stat. 65 (establishing the Department of Treasury) makes clear that at the time the heads of Departments were not considered "inferior Officers".
However, those acts only gave inferior Officers authority to preserve the records and books in the case of a vacancy, not to engage in positive action.
It's clear that they weren't unduly worried about having breaks in ability to act, but that was over two centuries ago The government was small enough and amicable enough at the time, that it was presumed vacancies while Congress was in session would be brief. In the context of the 18th Century, by now Trump would have either made a recess appointment or sent a nomination to the Senate to be approved. I don't think that the decision of the 1st Congress to not give the remaining Officers full power during a vacancy can be considered determinative or even indicative of its inability to do so.
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