A few days ago, Jeff Sessions resigned as Attorney General, and Matthew Whitaker was appointed Acting Attorney General pending the nomination and confirmation of a permanent replacement for Sessions. Several lawyers have been claiming the Whitaker appointment violates the Constitution, including George Conway and Neil Katyal writing in the New York Times. Others disagree with Katyal and Conway, including law professor Stephen Vladeck who argued in the New York Times three days ago that “Whitaker May Be a Bad Choice, but He’s a Legal One.” I don’t know if it’s a bad one, but I do believe it conforms with the original meaning of the Constitution.
The first thing everyone has to realize is that the Whitaker appointment is 100% compliant with a federal statute called the Federal Vacancies Reform Act of 1998 (FVRA) which authorizes temporary appointments of people who have never been nominated or confirmed by the Senate. That statute is supported not just by the powers of Congress, but also by the powers of the Senate (e.g. its rulemaking power). Statutes like the FVRA, authorizing the appointment of acting department heads without Senate confirmation, have been on the books since the 1790s, and we can look even earlier for precedents.
For example, Congress created the office of Secretary of Foreign Affairs on July 27, 1789 and John Jay acted in that position even though he had never been nominated or confirmed by the Senate to anything. President Washington explicitly referred to Jay (e.g. in a September 5, 1789 letter to Henry Knox) as the “acting Secretary of Foreign Affairs.” Jay wrote on October 7, 1789: “Circumstances hav[e] rendered it necessary that I should continue, though not officially, to superintend the Department of Foreign Affairs.” Washington wrote on October 13, 1789 that Jay “has been so obliging as to continue his good offices….” Congress renamed the department “State” while Jay was still its acting head. That leaves the question of why Washington and Jay thought it was constitutional, and they didn’t explicitly say, as far as I know. But there is a very reasonable answer.
Ever since the 1840s (if not earlier), the executive branch has been arguing that the presidential power of appointment results from his constitutional duty to take care that the laws are faithfully executed. You cannot faithfully execute the law without subordinates, and appointing subordinates is a core part of executive power.
The Constitution says: “The executive Power shall be vested in a President . . .” and “he shall take Care that the Laws be faithfully executed.” And the Constitution further says that Congress has power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof” (my emphasis).
The main argument against the Whitaker appointment is that it does not comply with Article II, Section 2 of the Constitution (my emphasis):
The President….shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
The last sentence is about recess appointments. There would be no controversy about the Whitaker appointment if it happened during the recess of the Senate, but the Senate was holding brief “pro forma” sessions instead of deciding to recess, so let us assume the Senate was not in recess. But observe: the Recess Appointments Clause could have easily been written so as to require that the President only choose an acting Attorney General from people who were already holding some Senate-confirmed office, but that Clause instead was written so as to allow the President to choose anyone.
And how about the sentence preceding the Recess Appointments Clause? Doesn’t the Whitaker Appointment (and the FVRA) violate that? Actually, no. One could argue in Whitaker’s favor that he is an “inferior officer” because he is only serving for a limited time, but that argument is not very compelling because he has a LOT of power and no boss other than the President; and anyway, saying that John Jay was an “inferior officer” would not have boosted Jay’s legitimacy at all, because Congress had not vested any power for Jay’s appointment in the President.
The real reason why the Whitaker and Jay appointments (and countless appointments in between) comply with the original meaning of Article II, Section 2 is very probably because they were “herein otherwise provided for” in the sense that they were provided for by this language that I already quoted above: “The executive Power shall be vested in a President….he shall take Care that the Laws be faithfully executed” (and we also have the power of Congress to “make all Laws which shall be necessary and proper for carrying into Execution” that presidential power). As long as the Whitaker appointment is limited in time, and the President intends to go through the nomination and confirmation process, the appointment is necessary and proper.
Katyal and Conway argue that it would have been okay if one of the hundreds of Senate-confirmed officials had been transferred (“cut and pasted”) to Acting Attorney General, even though the Senate never checked their qualifications to run the Justice Department. Whitaker was the Chief of Staff for Sessions without having been confirmed by the Senate, and had been confirmed by the Senate as a U.S. Attorney back in 2004. Trump could have just as constitutionally appointed George Conway as Acting Attorney General, even though Conway has never been confirmed by the Senate for anything.