In an opinion issued today, the Department of Justice’s Office of Legal Counsel concludes that the “constitutionality of [Matthew] Whitaker’s designation as Acting Attorney General is supported by Supreme Court precedent, by acts of Congress passed in three different centuries, and by countless examples of executive practice.”
Having authored a 2003 OLC opinion that today’s opinion cites with approval, I recognize that my assessment of the strength of today’s opinion might be taken as biased. So I will instead simply summarize the major arguments of the Appointments Clause portion of the opinion and invite the interested reader to study those arguments:
A. “[L]ong-standing historical practice and precedents” from “all three branches of [the federal] government” support the legality of Whitaker’s designation as Acting Attorney General.
1. “Since 1792, Congress has repeatedly legislated on the assumption that temporary service as a principal officer does not require Senate confirmation.” (See opinion at 8-9.)
2. Over the course of American history, Presidents have repeatedly exercised the power to select non-Senate-confirmed persons to serve temporarily as acting principal officers. While we have not canvassed the entire historical record, “our non-exhaustive survey” of the Executive Branch’s practice “has identified over 160 occasions between 1809 and 1860 on which non-Senate-confirmed persons served temporarily as an acting or ad interim principal officer in the Cabinet.”
In 1809, Jefferson designated the chief clerk of the Department of War to serve as Acting Secretary of War. In 109 additional instances during that period, chief clerks temporarily served as ad interim Secretary of State, Secretary of the Treasury, or Secretary of War. “Between 1853 and 1860 there were also at least 21 occasions on which non-Senate-confirmed Assistant Secretaries were authorized to act as Secretary of the Treasury.” “Congress not only acquiesced in such appointments, but also required a non-Senate-confirmed officer to serve as a principal officer in some instances.”
In January 1861, President Buchanan, summarizing the longstanding presidential view of the authority to designate interim officers, including non-Senate-confirmed persons, stated that the practice “has been constantly followed during every administration from the earliest period of the government, and its perfect lawfulness has never, to my knowledge, been questioned or denied.” (See opinion at 9-11.)
As to the role of Acting Attorney General: Several formal legal opinions between 1859 and 1868 were signed as “Acting Attorney General” by persons who had not been Senate-confirmed, and such a person was designated ad interim Attorney General for a short time in July 1866. (See opinion at 11-13.)
3. In 1898, the Supreme Court ruled (unanimously) in United States v. Eaton that the exercise of the authority of a Senate-confirmed office by an acting official did not transform that official into a principal officer whose appointment requires Senate confirmation. The Court “emphasized that the temporary performance of a principal office is not the same as holding that office itself,” and it “made clear that it holding was not limited … to the exigencies of Eaton’s particular appointment.”
“The Court has not retreated from Eaton, or narrowed its holding, but instead has repeatedly cited the decision for the proposition that an inferior officer may temporarily perform the duties of a principal officer without Senate confirmation.” (See opinion at 13-15.)
B. “Executive practice and more recent legislation reinforces that an inferior officer [who has not been Senate-confirmed] may temporarily act in the place of a principal officer.” Among the many examples from the presidencies of George W. Bush, Barack Obama, and Donald Trump: “In three instances, President Obama placed a Chief of Staff above at least one Senate-confirmed officer” in the line of succession for a department. Upon President Obama’s designation, non-Senate-confirmed individuals served as Acting Director of the Peace Corps, Acting Administrator of the Small Business Administration, and Acting Secretary of Labor.
“Indeed, if it were unconstitutional for an official without Senate confirmation to serve temporarily as an acting agency head, then the recent controversy over the Acting Director of the CFPB should have been resolved on that ground alone—even though it was never raised by any party, the district court, or the judges at the appellate argument.” (See opinion at 16-18.)