The naming of Matthew Whitaker as acting head of the Department of Justice, following the forced resignation of Attorney General Jeff Sessions, has kicked off a mini-debate between legal scholars over the propriety of his appointment. On Thursday, Neal Katyal and George Conway argued in The New York Times that Whitaker’s elevation ran afoul of the Constitution’s Appointments Clause, which requires that the president appoint “principal officers” of the United States, such as the Attorney General, only with the “advice and consent” of the Senate. John Yoo, a conservative legal scholar who served at DOJ under the Bush Administration, told Axios he agreed, and that the Federal Vacancies Reform Act, which purports to authorize the appointment of unconfirmed interim officers to fill vacancies, was unconstitutional as applied to such “principal” offices. Supreme Court Justice Clarence Thomas expressed a similar view in an opinion just last year. On the other side, we have Steve Vladeck, a law professor at the University of Texas, who notes that the Supreme Court blessed temporary appointments without confirmation back in 1898, in United States v. Eaton.
Read more at https://www.cato.org/blog/hacking-appointments-clause
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