There has been much controversy over the naming of Matthew Whitaker, the Chief of Staff of former Attorney General Sessions, to be Acting Attorney General. Whitaker was not serving in a position that required the advice and consent of the Senate.

So the question is whether Whitaker can be named as Acting Attorney General when the Attorney General can only be appointed with the advice and consent of the Senate. In my view, the Constitution’s original meaning does not allow this appointment, but nonoriginalist positions might very well permit it.

Many years ago, I published an article on the original meaning of the Recess Appointments Clause. While Justice Scalia relied on the theory I developed in the Noel Canning case, unfortunately his opinion was a dissent for four justices. The majority accepted Justice Breyer’s view, which was clearly contrary to the original meaning. In that article, I also developed an argument what the Constitution’s original meaning says about acting appointments, which I present below.

The Attorney General is the Head of the Department of Justice. As such, the Attorney General is not an inferior officer under the Appointments Clause and therefore can only be appointed with the advice and consent of the Senate. How then can the President alone name a person to be Acting Attorney General—that is, to serve temporarily as Attorney General? To understand how this can happen requires a little background. When the President makes an “acting appointment,” it is important to understand that there is no appointment made under the Constitution.

For example, suppose that Congress provides that either the Deputy Attorney General or the Solicitor General, both of whom are appointed with the advice and consent of the Senate, shall be eligible to serve as Acting Attorney General when, in the absence of the Attorney General, the President designates one of them to be Acting Attorney General. In this situation, no appointment actually occurs. Instead, the correct way to conceptualize this is that both the Deputy Attorney General and the Solicitor General have, as one power of their office, the responsibility to serve as Acting Attorney General when the President so designates them. Thus, when the Senate consented to their appointment, it already consented to them serving as Acting Attorney General.

This process cannot occur constitutionally, however, if the person designated to serve as Acting Attorney General was not appointed with the advice and consent of the Senate. Since serving in the position of Attorney General requires an advice and consent appointment, a person who has been appointed without the Senate’s advice and consent cannot serve in that position, even temporarily.

The best argument on the other side is that temporarily serving as acting Attorney General is not the same as serving as Attorney General. Therefore, a temporary appointment does not require advice and consent. But this argument is weak. It is hard to know how short an appointment needs to be to be considered temporary. Moreover, being the Head of a Department is an important job, even if one only serves there for a brief period. It is not the length of time, but the duties that are performed that are relevant.

It is true that an early statute, passed in 1792, appeared to allow officers who had not secured the advice and consent of the Senate to serve as Heads of Departments. But that view is problematic. Interestingly, Senator Rufus King, who was a Philadelphia Framer, recognized the problem in 1813. David Currie writes that King argued that allowing officers appointed without the Senate’s consent to act as the Head of the Department “would permit a President to evade the requirement of Senate approval.”

This post was originally published at The Originalism Blog, and is re-posted here with permission.

Michael Rappaport

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