Senators Sue Over Whitaker Designation

Steven D. Schwinn, John Marshall Law School

Senators Richard Blumenthal, Sheldon Whitehouse, and Mazie Hirono filed suit yesterday against "purported Acting Attorney General" Matthew Whitaker and President Trump, seeking declaratory and injunctive relief against President Trump's designation of Whitaker as Acting AG.

The complaint contends that the designation (done under the purported authority of the Federal Vacancies Reform Act) violated the Appointments Clause and sidestepped the DOJ succession statute. (These arguments are similar to the points in the filing last week seeking Supreme Court review of the designation.)

The complaint points especially to the Senate's advice-and-consent role in principal officer appointments as a separation-of-powers check. That's partly to establish standing: "By designating Mr. Whitaker to perform the functions and duties of the Attorney General without having been subject to Senate confirmation, President Trump has unlawfully denied the Plaintiffs their right, as sitting U.S. Senators, to vote on whether to consent to his appointment to that role."

But it's also to illustrate why the Senate's role matters. Quoting Federalist 76, the complaint says:

It is precisely so that matters like these can be thoroughly examined by Senators that the Constitution prohibits the appointment of principal federal Officers without the Senate's advice and consent. That safeguard, the Framers recognized, helps prevent the President from appointing Officers with "no other merit than that of . . . possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure." The Framers regarded the advice-and-consent requirement as "an excellent check upon a spirit of favoritism in the President" that "would tend greatly to prevent the appointment of unfit characters from State prejudice, and from family connection, [and] from personal attachment."