Well, that didn't take long - Sessions fired

[Buck_Godot]

Also it appears that Whitaker is one of the great legal minds of our centruy. Simultaneously believing that Marbury vs Madison was decided incorrectly so that the supreme court shouldn’t be able to overturn laws to to their unconstitutionality, but that also the New Deal and ACA should have been overturned as unconstitutional. Interestingly under the list of cases he thought were wrongly decided, Dred Scott is conspicuously absent. But in any case what is really important is that you base your legal decisions on a Christian faith rather than any secular viewpoint.

[Bricker]

@RTFirefly

OK, that’s the Vacancies Act. But any thoughts about the applicability of the second paragraph of Article II, Section 2 of the Constitution?

Is the AG an ‘inferior Officer’?

If not, it wouldn’t seem that Congress could vest the AG appointment in the President alone. I can see how the Vacancies Act can do a semi-workaround in the case of persons who’ve already been appointed “by and with the Advice and Consent of the Senate,” but Whitaker hasn’t.

The Supreme Court hasn’t directly addressed this issue since 1898, but when they did, they decided that the Appointments Clause’s use of “inferior officer,” was correctly applied to the replacement for one Sempronius H. Boyd, the minister resident and consul general of the United States to Siam, a position that required Senate confirmation, which Boyd had. Boyd fell ill, and the President appointed one Lewis A. Eaton to the position as acting consul. When his position was challenged as violative of the Appointments Clause, the Supreme Court found that Eaton was validly appointed, saying:

The claim that Congress was without power to vest in the President the appointment of a subordinate officer called a “vice-consul,” to be charged with the duty of temporarily performing the functions of the consular office, disregards both the letter and spirit of the Constitution. Although Article II, Section 2, of the Constitution requires consuls to be appointed by the President “by and with the advice and consent of the Senate,” the word “consul” therein does not embrace a subordinate and temporary officer like that of vice-consul, as defined in the statute.The claim that Congress was without power to vest in the President the appointment of a subordinate officer called a “vice-consul,” to be charged with the duty of temporarily performing the functions of the consular office, disregards both the letter and spirit of the Constitution. Although Article II, Section 2, of the Constitution requires consuls to be appointed by the President “by and with the advice and consent of the Senate,” the word “consul” therein does not embrace a subordinate and temporary officer like that of vice-consul, as defined in the statute.

There is a 2003 Office of Legal Counsel opinion that the general case of someone acting for a vacant office held by a principal officer is still an inferior officer within the meaning of Article II, Section 2, Clause 2.

However, at least one sitting Supreme Court justice disagrees with this view.

You and Clarence Thomas are in agreement! In NLRB v Southwest General Inc, Thomas wrote a concurring opinion in the result, but argued:

The dissent’s conclusion that the FVRA authorized the appointment in this case, however, implicates an important constitutional question that the Court’s interpretation does not: Whether directing Lafe Solomon to serve as acting general counsel of the National Labor Relations Board (NLRB or Board), without the advice and consent of the Senate, complied with the Constitution.

I write separately to explain my view that the Appointments Clause likely prohibited Solomon’s appointment.

It’s possible that Thomas and you reached your conclusions for entirely different reasons. In any event, he was the only justice to advance this view.

[enipla]

@Whitaker

“I’d like to see things like their world view, what informs them. Are they people of faith? Do they have a biblical view of justice?”

Bring forth the fire and brimstone.

[Kimstu]

@WillFarnaby

Yes it appears he was a scientist and devolved into a policy hack.

So, any scientist who says the sort of thing that you ignorantly claimed “no scientist” would say gets reclassified by you as a “policy hack” so you don’t have to admit you were wrong. Very convenient.

[RTFirefly]

@Bricker

The Supreme Court hasn’t directly addressed this issue since 1898, but when they did, they decided that the Appointments Clause’s use of “inferior officer,” was correctly applied to the replacement for one Sempronius H. Boyd, the minister resident and consul general of the United States to Siam, a position that required Senate confirmation, which Boyd had. Boyd fell ill, and the President appointed one Lewis A. Eaton to the position as acting consul. When his position was challenged as violative of the Appointments Clause, the Supreme Court found that Eaton was validly appointed, saying:

There is a 2003 Office of Legal Counsel opinion that the general case of someone acting for a vacant office held by a principal officer is still an inferior officer within the meaning of Article II, Section 2, Clause 2.

However, at least one sitting Supreme Court justice disagrees with this view.

You and Clarence Thomas are in agreement! In NLRB v Southwest General Inc, Thomas wrote a concurring opinion in the result, but argued:

It’s possible that Thomas and you reached your conclusions for entirely different reasons. In any event, he was the only justice to advance this view.

My admittedly uneducated POV is that how can Cabinet officers be ‘inferior officers’ within the set of persons the President appoints? They’re at the top of that group - nobody’s above them but the President.

Anyone further down the hierarchy can reasonably be called an inferior officer, AFAIAC. I don’t have a particular opinion about where the line is drawn amongst those further down: they can draw it with only Cabinet officers on one side, and everyone else on the other, or they can draw the line further down. But Cabinet officers as inferior officers? Makes no sense.

And IMHO, the acting v. permanent distinction seems rather specious: if they can wield the full powers of the office, they’re not ‘inferior’ in any meaningful sense just because they’re a temporary stopgap.

ETA: I suspect it may become a moot point real fast - Trump has suddenly decided he’s never known this Whitaker guy. Whitaker, who’s he?

[Whack-a-Mole]

@RTFirefly

My admittedly uneducated POV is that how can Cabinet officers be ‘inferior officers’ within the set of persons the President appoints? They’re at the top of that group - nobody’s above them but the President.

I’m not sure it matters but since IANAL I will leave it to you all to sort through (links are present in linked article and, admittedly, that is a very liberal leaning site):

Under the Attorney General Succession Act (AGSA), when the office of attorney general is vacant, the deputy attorney general is next in line to take over. Rosenstein, the deputy attorney general, was confirmed by the Senate to that post. He should be named acting attorney general.

On November 14, the Justice Department’s Office of Legal Counsel wrote a 20-page opinion purporting to justify Whitaker’s appointment by citing the Vacancies Reform Act (VCA), which states that the president can order an officer or employee of an executive agency to assume the functions of a vacant office.

However, it is a well-established rule of statutory construction that when a specific statute and a general statute both apparently apply, the specific statute takes precedence. While the VCA covers vacancies in general, the AGSA specifically applies to the vacancy of the attorney general. Thus, the AGSA is the statute that must be followed in this case, and it mandates that Rosenstein fill the vacancy created by Sessions’s resignation.

SOURCE: https://truthout.org/articles/matthew-whitaker-was-illegally-appointed-and-should-be-removed/