Implications on the War Powers Act from a Challenge to Matthew Whitaker

[Queen Mum Inks.LWC]

A friend asked my opinion on a potential challenge to Trump’s appointment of Matthew Whitaker as acting attorney general.  That got me thinking... If the Supreme Court were to rule that an acting cabinet position constitutes a principal office and that Congress is not permitted to delegate its advice and consent power regarding such positions to the executive branch through the Vacancies Reform Act of 1998, what impact could that have on the constitutionality of the War Powers Act?

Defenses of the constitutionality of hte WPA have often focused on the short-term nature of its delegations of power; however, the VRA’s provisions are similarly short-term delegations. Obviously whether the Court will even address this issue as it relates to Whitaker or the VRA is still unknown, but I was curious if anyone else had any thoughts on this.

[J. J.]

A friend asked my opinion on a potential challenge to Trump’s appointment of Matthew Whitaker as acting attorney general.  That got me thinking... If the Supreme Court were to rule that an acting cabinet position constitutes a principal office and that Congress is not permitted to delegate its advice and consent power regarding such positions to the executive branch through the Vacancies Reform Act of 1998, what impact could that have on the constitutionality of the War Powers Act?

Defenses of the constitutionality of hte WPA have often focused on the short-term nature of its delegations of power; however, the VRA’s provisions are similarly short-term delegations. Obviously whether the Court will even address this issue as it relates to Whitaker or the VRA is still unknown, but I was curious if anyone else had any thoughts on this.

An interesting question, but I doubt if the constitutionality of a "congressional veto" will come up.

First, there is a question on if the Whittaker appointment actually violates statute.   The first 6 pages of DoJ Office of Legal Counsel cover this. https://assets.documentcloud.org/documents/5113255/Acting-AG-Op.pdf  In other words, there is no actual statutory violation. 

Second, the US Constitution, Article II, Second 2 provides that:

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It is very clear Congress can establish regulations for appointments.  It is not an issue of a "veto" of some action.  Congress can pass a law that says, in effect, "You cannot appoint someone as acting attorney general until the Senate approves."



 

[True Federalist (진정한 연방 주의자)]

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.

[Slander and/or Libel]

So the question here has been whether an Acting Official can be someone not senate-confirmed to some office. But more broadly, there are a whole lot of senate-confirmed office. Are we saying that when the senate votes to confirm an undersecretary of a low profile department, that they're doing it with the understanding that they may also be confirming them to temporarily assume ANY senate-confirmed job under FVRA? That doesn't seem to me to follow at all, but people sort of implicitly presume it.

[True Federalist (진정한 연방 주의자)]

That's what the VRA says. Any confirmed official from anywhere in the government or any GS-15 (or person paid at least as much as a GS-15) from that department. It's how Trump put Mulvaney temporarily in charge of the CFPB, altho technically he's been in charge there longer than the 210 day limit.

[Slander and/or Libel]

That's what the VRA says. Any confirmed official from anywhere in the government or any GS-15 (or person paid at least as much as a GS-15) from that department. It's how Trump put Mulvaney temporarily in charge of the CFPB, altho technically he's been in charge there longer than the 210 day limit.

Yeah, I've been through the VRA a whole bunch since all this stuff is happening, so I know that's how it's worded. But I wonder if that confirms to the constitutional intent of senate confirmation, that it's a free pass to act in ANY senate confirmed position.

And I happen to know why Mulvaney is in place past 210 days! Kathleen Kraninger was nominated to head CFPB 7 days before his 210 days would have been up, and VRA specifies that the person in the acting position can continue to do so while there is a nominee in place. If the nominee is rejected or withdrawn, the acting person can go for another 210 days. Then there can be another nominee, then another 210 days. Kraninger was nominated on 6/16/2018, 158 days ago, meaning Mulvaney has been there for 361 days. If Kraninger is withdrawn or defeated, Mulvaney gets to reset the clock.