Friday, November 16, 2018
Tom Goldstein, frequent Supreme Court litigator and publisher of SCOTUSblog, asked the Supreme Court today to rule on the legality of President Trump's designation of Matthew Whitaker as Acting AG. The issue came up in Goldstein's motion to substitute Rod Rosenstein (and not Matthew Whitaker) in a case against the AG.
The case pits the AG Succession Act (which specifies an automatic line of succession for the office) against the Vacancies Reform Act (which applies more broadly and gives the President more flexibility in naming an acting officer). It also asks whether the President's designation violated the Appointments Clause, because the AG is an "officer" that requires Senate confirmation.
The government's position is set out here, in the OLC memo concluding that President Trump had authority to designate Whitaker. Walter Dellinger and Marty Lederman have an outstanding "initial reactions" here, at Just Security.