A Partisan Guide to the Fight Over the Acting Attorney General

(Bloomberg Opinion) -- It’s on. Maryland filed a lawsuit Tuesday claiming that Matthew Whitaker can’t lawfully be acting U.S. attorney general because he has never been confirmed by the U.S. Senate. On Wednesday, the Department of Justice published its explanation for why Whitaker’s temporary appointment is lawful under the Vacancies Reform Act and the U.S. Constitution.

Because the statutory and constitutional issues are technical and complex, you may well be asking yourself: What am I supposed to think? I’m here to give you an answer, albeit one that might frustrate you.

If you’re a liberal, you should think Whitaker can serve for 210 days.

If you’re a conservative, you should think his appointment is invalid, and that Deputy Attorney General Rod Rosenstein (or another Senate-confirmed Justice official) must fill in for Jeff Sessions, who resigned as attorney general last week.

You’ll notice that these answers are 180 degrees opposed to the political positions adopted by most actual liberals and conservatives.

Liberals are afraid that Whitaker will fire special counsel Robert Mueller, so they’re trying to block President Donald Trump from taking advantage of Whitaker’s temporary appointment by asking courts to find that he’s not really the acting attorney general.

Conservatives, meanwhile, want Trump to be able to name whoever he wants. If that means threatening or even removing Mueller, they’re OK with that.

Both sides are being hypocritical, legally and constitutionally speaking.

Here’s the reason:

Liberals are supposed to like pragmatic, effective laws that enable the government to get things done. The Vacancies Reform Act is such a law. It follows on earlier laws going all the way back to 1792 that have allowed presidents to name temporary appointees to key government jobs. Under the act’s text and logic, Whitaker gets to be the acting attorney general. He’s been a senior Justice Department official as chief of staff to Sessions, even though he’s never been Senate-approved.

Conservatives, on the other hand, are supposed to adhere to the formal requirements stated explicitly in the Constitution, no matter what subsequent practices have been adopted by Congress and even validated occasionally by courts. Under the explicit text of the Constitution, principal officers — defined to mean government officials who have no boss but the president — are supposed to be confirmed by the Senate. Whitaker hasn’t been confirmed, so he shouldn’t be able to serve. Temporary positions should only be filled by Senate-confirmed officials, like Rosenstein.

The statutory part of the Maryland suit and the opinion by the Office of Legal Counsel at Justice is particularly technical. To oversimplify, Maryland says that the Vacancies Reform Act is rendered inapplicable by another statute that specifically says the president may designate the deputy attorney general as acting attorney general when the job is open. The OLC says that the other statute only says what the president “may” do, but doesn’t require him to appoint the deputy attorney general — he can use the Vacancies Reform Act to pick someone else.

The nitpicky Maryland position is, roughly speaking, consistent more with conservative-style statutory interpretation than the usual liberal approach. Liberals like to read statutes with an eye to purpose — and it is pretty clear that the purpose of the Vacancies Reform Act is to expand presidential options, even when other statutes provide a narrower range of choices. The Justice Department’s reading is more purpose-driven.

The major-league hypocrisy comes out in the constitutional debate. There’s a long, essentially unbroken practice going back well over 200 years of Congress authorizing temporary appointments. Constitutional liberals usually take such practice seriously.

Even more important, there’s very strong practical reason to let presidents make temporary appointments, even of non-Senate-confirmed officers. When a new presidential administration takes over, it wants to start governing right away — not wait for Senate confirmation of every principal officer to start doing his or her job. And there aren’t always Senate-confirmed deputies or others of the correct political viewpoint waiting in the wings.

For many years, whenever the Supreme Court has had to deal with long-standing, pragmatic statutory arrangements that serve useful functions, the liberals have said yes — and the conservatives have voted no. One recent example was a 2014 case, NLRB v. Noel Canning, about the presidential power to make recess appointments.

Justice Stephen Breyer wrote an opinion, joined by the court’s other liberals and Justice Anthony Kennedy, holding essentially that the Senate couldn’t block the president from making recess appointments by shortening recess to the period between formal sessions. Breyer relied on the practical purpose of recess appointments as well as a long, unbroken process of such appointments by various presidents, unchallenged by the Senate.

Justice Antonin Scalia wrote the formalistic conservative dissent, saying that the text of the Constitution was clear, and that practice to the contrary was irrelevant.

Applying the approach of the Noel Canning case to the Whitaker situation, liberals should uphold the appointment. Conservatives should say that no matter what the Vacancies Reform Act says, the text of the Constitution is clear — principal officers must be Senate-confirmed. And Whitaker isn’t.

If the Maryland challenge makes its way through the courts, the justices may have the chance to stick to their jurisprudential colors or reveal themselves to be partisan hypocrites. I for one hope the case becomes moot before the justices get a crack at it. I don’t want to find out how principled they really are.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

©2018 Bloomberg L.P.