Here are some very preliminary reactions to yesterday’s OLC opinion, in which Assistant Attorney General Steve Engel explained OLC’s pre-decisional advice to the President that he could lawfully designate the Chief of Staff to the Attorney General, Matthew Whitaker, to perform the functions and duties of the Office of Attorney General during the vacancy in that office that exists by virtue of Jeff Sessions’s resignation last Wednesday.
In sum, our tentative views are:
i. that OLC’s analysis is solid, very professional, and formidable—not remotely the hackwork that some are describing it as;
ii. that the two questions the opinion addresses—one statutory, the other constitutional—are genuinely difficult, and thus perhaps you ought to be wary of easy or over-confident answers;
iii. that OLC’s conclusion that the Whitaker designation is authorized by the Vacancies Reform Act of 1998 is possibly (but not certainly) correct, primarily because of an unexplained oddity of the 1998 Act, but that there are serious counterarguments, too, some of which OLC doesn’t address;
iv. that if Whitaker now holds an “office” within the meaning of the Appointments Clause (an unresolved question the opinion does not purport to answer), OLC has not adequately explained why Trump’s designation of Whitaker would be consistent with that Clause and, in particular, why the Supreme Court’s decision in U.S. v. Eaton (1898) does not undermine rather than support the President’s designation here;
and therefore, at the very least,
v. that the “constitutional avoidance” canon may counsel in favor of a reading of the VRA that preserves the primacy of the AG Succession statute, pursuant to which Deputy Attorney General Rosenstein would perform the AG’s functions during the vacancy (however long it might last).
The Vacancies Act and the AG “Succession” Statute
Although the statutory question here is actually quite complicated and difficult, we’ll try to be relatively brief about our initial take in reaction to the OLC opinion.
OLC concludes that Congress has afforded the President two alternative options for filling the Sessions vacancy:
OPTION 1: If the President did nothing, then Deputy AG Rod Rosenstein would perform the AG’s functions, as the AG-specific Succession Act, 28 U.S.C. 508, prescribes. OLC does not deny that that would have been the only possibility before 1998.
OPTION 2: According to OLC, however, in 1998 Congress dramatically changed the law that had been applicable to AG vacancies for the preceding 130 years, by giving the President the option of assigning the extensive and awesome powers of the office to someone else, including to any DOJ employee, such as Whitaker, who’s served at DOJ for at least 90 days in the past year and whose salary is at least equal to the rate of pay at level GS–15 of the General Schedule, even though such a person has not been Senate-confirmed to a DOJ office.
As we see it, the strongest arguments in the OLC opinion in support of this conclusion are:
(i) that although Section 3347(a) of the VRA by its terms recognizes that a statute such as the AG Succession Act is an exception to the VRA’s exclusivity, it does not foreclose the VRA’s possible applicability, as an alternative to such an office-specific succession statute;
(ii) that there’s nothing in post-1998 law indicating that Congress intended to make Section 508 the exclusive means of dealing with AG vacancies;
and, perhaps most importantly,
(iii) that although the Senate-passed version of the VRA would have expressly retained the exclusivity of Section 508 for purposes of AG vacancies, the VRA conference committee inexplicably, and without explanation, omitted the AG exception from the final, enacted version of the VRA, thereby (arguably) creating a sea change in the rules that had applied to AG vacancies since 1870.
The strongest counterarguments, in our view, are these five, the second and fourth of which former OLC Deputy AAG John Bies first floated in this July 2017 post:
(i) As the State of Maryland emphasizes in its brief challenging Whitaker’s designation, if the 1998 Congress truly did what OLC claims, it would, indeed, be a huge sea change from the rules the legislature had prescribed for the preceding 130 years—a system that worked well and to which no one publicly objected. And as Justice Scalia was wont to say, “Congress … does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”
(ii) Section 508(a) provides—without any mention of the President—that “[i]n case of a vacancy in the office of Attorney General, . . . the Deputy Attorney General may exercise all the duties of that office.” OLC’s reading of the VRA thus creates the anomaly whereby the President’s VRA designee (here, Whitaker) and the Deputy AG are simultaneously authorized to perform the AG’s duties. (It’s obviously unlikely any DAG—removable by the President—would actually assert his authority to do so in such a case; but the point is that OLC’s reading leaves open that possibility—something Congress presumably would have precluded had it actually wanted to afford the President the option of using either mechanism.) The OLC opinion does not address this anomaly.
(iii) Moreover, as a friend of ours flagged today, in a Department such as DOJ, OLC’s reading can also lead to another anomaly—one that is in fact currently occurring at the Department of Justice: A mere agency employee, never considered by the Senate, now has supervisory authority over many Senate-confirmed officers (the DAG, the SG, the head of OLC, other Assistant Attorneys General, all confirmed U.S. Attorneys, etc.). Can Congress really have intended such a counterintuitive and, frankly, bizarre situation? The OLC opinion does not address this question, either.
(iv) Section 508 further provides that in a case where there’s no Senate-confirmed Deputy AG in office, the Associate Attorney General (assuming there is such an officer in place, unlike today, where there’s not) “shall” perform the AG’s duties. (Moreover, even though subsection (a) says only that the Deputy AG “may” perform such duties, it might be fair to read that provision, too, to impose an obligation on the DAG (i.e., that Congress didn’t mean to suggest the DAG could decline to fill in.) As one of us wrote previously with respect to a similar provision in the statute governing a vacancy in the Office of CFPB Director, Congress’s use of the mandatory “shall” might fairly be understood to at least create a presumption of congressional intent that Section 508 supersedes the permissive provisions of the VRA, which provide the President “may direct” certain individuals to perform such functions. DOJ has, however, contested that view, and one district court accepted its argument (see pp. 22-23) that “shall” in the CFPB statute does not reflect a congressional intent to require application of the agency-specific statute rather than the VRA.
(v) Finally, and as the Maryland brief also emphasizes, OLC’s reading of the VRA would require resolution of the difficult Appointments Clause question we discuss below, whereas reading Section 508 to be exclusive (or at least to be applicable where possible) avoids teeing up the serious constitutional doubts in those cases where a President might use the VRA to designate someone other than a Senate-confirmed officer in the same agency to perform the duties of a Department head.
The Appointments Clause Question
OLC’s analysis of the Article II question is also very rich, and thorough—and it makes a strong case that the Appointments Clause does not impose a categorical rule that a President may never assign a non-Senate-confirmed person to perform the functions of a principal officer such as the Attorney General when that office is vacant. Even so, the opinion never quite engages forthrightly with the characteristics that make this particular assignment so potentially problematic under the Constitution.
The gist of the Appointments Clause argument against Whitaker’s assignment is that the Office of the Attorney General is a “principal,” rather than an “inferior,” office (that’s undisputed), and that therefore the Appointments Clause requires that someone can hold that office, even on a “temporary” basis, only if the President appoints him to it by and with the advice and consent of the Senate. Because the Senate hasn’t confirmed Whitaker to be AG, or “Acting” AG, goes the argument, Trump’s designation of him to perform the AG’s duties and functions is unconstitutional, even if the VRA authorizes it.
In order to put this question in context, it’s important to keep in mind a couple of things that distinguish the Whitaker assignment from the usual presidential practice of filling “principal” officer vacancies:
To begin with, in the vast majority of historical cases in which someone has stepped in to perform the functions of a “vacant” office of the head of a department, that “acting” official has been someone holding another office in that same department—usually a “deputy” or “first assistant”—whom the Senate has already confirmed for that underlying office. In such cases, the Supreme Court has deemed the Senate to have already in effect approved that person’s authority to step into the principal’s shoes during vacancies: The prospect of such an “acting” role is deemed part of the duties of the office for which the person was confirmed—those duties are said to be “germane” to the confirmed office. From an Appointments Clause perspective, therefore, it doesn’t matter how the person was assigned to perform the functions of the higher office (although of course the assignment must be consistent with any relevant statutes). (Shoemaker and Weiss are the leading cases on this point.) In other words, where the “acting” officer is someone who was appointed by the President by and with the advice and consent of the Senate (colloquially known as a “PAS” appointee) to another office in the same agency, there’s no Appointments Clause issue at all. That scenario accounts for mine run of cases. But not this one.
Second, the Whitaker case deviates from this historical norm in another respect, as well, namely, that the President himself caused the vacancy: he gave Sessions an ultimatum of resigning or being removed. Of course, in and of itself that’s hardly unheard of: Jeff Sessions isn’t the first cabinet official to be removed by a President. What is very rare, however, is that although the President reportedly planned to rid himself of Sessions many months ago, he did not announce a nomination of a replacement for the Senate’s consideration when he created the vacancy. We’re not sure that’s never happened before with respect to the head of a department; but if has, it’s very rare. (We’re aware of one partial analogy, but presumably it’s not one Trump would eagerly cite as a precedent: After the Saturday Night Massacre in late October 1973, it took President Nixon 13 days to announce his intent to nominate William Saxbe to replace Elliot Richardson. (The formal nomination came a few weeks later.) But Nixon, of course—in contrast to Trump—had no inkling in advance that he’d be forcing Richardson to resign and therefore had no reason to be thinking about who the next Attorney General might be. Moreover, it’s very unlikely that Trump will announce a new AG nominee within the next week.)
Now, as for OLC’s analysis:
The OLC memo rightly emphasizes that before enactment of the Vacancies Act of 1868, Congress enacted a series of statutes that authorized the President to choose persons other than PAS (i.e., Senate-confirmed) officers from the same department to perform the functions of a principal officer in the event of a vacancy (or a disability of the officer); that Presidents exercised such authority over 100 times; and that, in particular, Presidents on at least three occasions assigned others—two confirmed cabinet heads and one non-confirmed assistant to the AG—to perform the functions of the Attorney General’s office after AG resignations, even though there wasn’t even any statutory basis for such assignments and even though the Senate hadn’t had an opportunity to consider whether those three persons should be eligible to be assigned such authorities.
This pre-1868 practice has not been the norm with respect to vacancies in the office of a Department head for the past 150 years. Even so, that early practice—almost never questioned on constitutional grounds for over 75 years—must surely have some bearing on the Article II question.
There are two possible theories that can explain the early practice.
1. First, our sense is that many (perhaps most) actors in the political branches early in the Nation’s history thought that the assignment of such functions to someone on an “interim” basis—even the significant functions of a cabinet official—did not necessarily make the assignee a constitutional officer at all, in which case the Appointments Clause would simply be inapposite. This argument is based on the idea that holding a constitutional “office” requires not only the performance of “significant authority pursuant to the laws of the United States” but also an assignment to a “continuing and permanent” position in the federal government. Lucia v. SEC, 138 S. Ct. 2044, 2051 (2018); see also United States v. Hartwell, 73 U.S. at 393 (holding that a clerk held an office because, inter alia, “his compensation was fixed by law” and “[h]is duties were continuing and permanent, not occasional or temporary”).
As OLC itself explained in a major 2007 opinion (at p.112), although the temporary nature of an assignment does not categorically preclude the possibility that it amounts to holding an “office,” in order to quality as an “office” “[t]he position should not be ‘transient’: The less fleeting and more enduring it is (or is likely to be), the more likely it is to be a continuing seat of power and thus an office.” See also id. at 77 (“for a position to be a federal office, it also must be ‘continuing,’ which means either that the position is permanent or that, even though temporary, it is not personal, ‘transient,’ or ‘incidental’”). In other words, the person exercising the duties of an office does not necessarily “hold” that office if such exercise is merely “transient.” Id. at 101 n.11.
To some modern observers—especially those inclined to exaggerate the constraints of the Appointments Clause—this “transience” factor might appear to be a “trivial distinction.” NLRB v. SW General, Inc., 137 S. Ct. 929, 946 n.1 (2017) (Thomas, J., concurring). We suspect, however, that it was much more commonly accepted earlier in our constitutional history than it might be today (concededly a topic for further research). (At a minimum, it wasn’t universally accepted before 1868: OLC cites an 1857 case, for instance (In re Boyle), in which the Court of Claims held that “the office of Secretary [of the Navy] ad interim is a distinct and independent office in itself” that had been held temporarily by the chief clerk of the Navy, and that the appointment was constitutional because the office was “inferior”).
If this understanding is correct, then it’s possible that Matthew Whitaker is simply not holding an office to which the Appointments Clause applies at all. That’s why he (presumably) isn’t receiving the salary that Congress has prescribed for the Attorney General, and why he (presumably) hasn’t received a presidential commission to any new “office,” something that Article II, section 3 of the Constitution requires for “all the Officers of the United States.” (We’re not sure of these facts, of course. It’d be interesting to learn from the government whether Whitaker is, in fact, collecting an AG’s salary or has received a presidential commission.)
Although yesterday’s OLC opinion doesn’t expressly rely upon this not-an-officer theory, it’s noteworthy that OLC does not disclaim, it either: Indeed, the opinion subtly but distinctly signals (p.6) that it’s an open question whether Whitaker is holding an office to which the Appointments Clause applies: “[I]t does not matter whether an acting official temporarily filling a vacant principal office is an inferior officer or not an ‘officer’ at all within the meaning of the Constitution, because Mr. Whitaker was appointed in a manner that satisfies the requirements for an inferior officer.” See also id. at 14 (characterizing the Supreme Court’s decision in Eaton (discussed below) as “emphasiz[ing] that the temporary performance of a principal office is not the same as holding that office itself”).
2. Assuming, however, that a temporary assignee does occupy an Article II “office” by virtue of his or her assigned functions—e.g., in Whitaker’s case, what we might call the “Office of the Acting Attorney General,” although there’s no formal position with that name—there’s another possible Appointments Clause explanation for the early practice, as well, one that depends crucially upon the Supreme Court’s 1898 decision in United States v. Eaton, 169 U.S. 331.
In Eaton, the U.S. counsel to Siam (under the Appointments Clause the equivalent of a principal officer whose appointment required Senate approval)—acting pursuant to a regulation, and with the approval of the State Department—appointed Eaton, a vice-counsel (not a Senate-confirmed officer) to take charge of the consulate after Boyd’s departure. Eaton served as “acting” U.S. counsel at Bangkok for ten months. In resolving a dispute about salary payments, the Court held that Eaton’s assignment as “acting” counsel didn’t violate the Appointments Clause even though the Senate hadn’t confirmed him. It reasoned that because Eaton was “charged with the performance of the duty of the superior for a limited time and under special and temporary conditions, he is not thereby transformed into the superior and permanent official. To so hold would render void any and every delegation of power to an inferior to perform under any circumstances or exigency the duties of a superior officer, and the discharge of administrative duties would be seriously hindered.”
In its opinion yesterday, OLC argues (pp. 14-15) that Eaton explains, or “confirm[s],” the extensive pre-1868 practice: “In view of the long history of such appointments, Eaton simply confirmed the general rule. It did not work any innovation in that practice.” And that much seems correct—Eaton might be said to establish, and to confirm, a sort of “exigency” exception to the Appointments Clause, for circumstances in which someone is assigned to perform a principal officer’s duties “for a limited time and under special and temporary conditions,” lest the discharge of those duties “be seriously hindered.”
As the language of Eaton itself suggests, however, this exception is not unlimited: The temporary assignment must be reasonably tailored to deal with the particular exigency that requires deviation from the ordinary processes the Appointments Clause requires. So, for example, the OLC opinion appears to agree with Justice Thomas, who in the recent NLRB v. SW General case argued that the rationale of Eaton could not be used to justify an “acting” designation that had lasted more than three years “in an office limited by statute to a 4-year term.” 137 S. Ct. at 946 n.1. Similarly, OLC approvingly cites one of its own opinions from 1977, in which it concluded that even though there was no “express statutory limit on the length” of the tenure of an “acting” OMB Director, “it may not continue indefinitely. Within a reasonable time after the occurrence of a vacancy in the office of Director, the President should submit a nomination to the Senate.” 1 Op. O.L.C. at 289-290.
That is to say, the Eaton exigency/”special and temporary conditions” “exception” requires that the “temporary” assignment be “reasonable,” which we think is best understood to mean that it must be at least reasonably t