The constitution is clear that principal officers must be confirmed by the Senate. You can't 'appoint' them. You can only nominate them and have them confirmed by the Senate.
Whittaker hasn't been confirmed by the senate. Thus, sitting as acting Attorney General is unconstitutional.
The law that Tracy cited *explicitly* indicates that if the role of the Attorney General is vacant, the duties shall fall to the Deputy Attorney General.
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The constitution is clear that principal officers must be confirmed by the Senate. You can't 'appoint' them. You can only nominate them and have them confirmed by the Senate.
Whittaker hasn't been confirmed by the senate. Thus, sitting as acting Attorney General is unconstitutional.
The law that Tracy cited *explicitly* indicates that if the role of the Attorney General is vacant, the duties shall fall to the Deputy Attorney General.
When a vacancy occurs the Vacancies Reform Act provides that the first assistant will serve as the acting official in the absence of a designation by the President which is obviously not the case in this case. The president used his authority to designate an interim AG.
The First assistant to the Attorney General is the Deputy Attorney General. Says who? Says the USC and the Federal Vacancies Reform Act.
(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of
section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.
28 U.S. Code § 508 - Vacancies
Whittaker isn't the Deputy Attorney General. Nor is he the holder of *any* senate confirmed office. Thus, he can't be appointed per the FVRA. And the constitution allows for only senate confirmed holders for any principal officer. Which the Attorney General is. And Whittaker is not.
Whittaker's appointment by Trump is unconstitutional.
Nope, its within the law.
Gosh it says only the president can do this.
- U.S. Code › Title 5 › Part III › Subpart B › Chapter 33 › Subchapter III › § 3345
5 U.S. Code § 3345 - Acting officer
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Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—
(1)
the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;
(2)
notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be
made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or
employee of such
Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if—
(A)
during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or
employee served in a position in such agency for not less than 90 days; and
(B)
the rate of pay for the
position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a
position at GS–15 of the General Schedule.
(b)
(1) Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if—
(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person—
(i)
did not serve in the
position of first assistant to the office of such officer; or
(ii)
served in the
position of first assistant to the office of such officer for less than 90 days; and
(B)
the President submits a nomination of such person to the Senate for appointment to such office.
(2) Paragraph (1) shall not apply to any person if—
(A)
such person is serving as the first assistant to the office of an officer described under subsection (a);
(B)
the office of such first assistant is an office for which appointment is required to be
made by the President, by and with the advice and consent of the Senate; and
(C)
the Senate has approved the appointment of such person to such office.
(c)
(1)
Notwithstanding subsection (a)(1), the President (and only the President) may direct an officer who is nominated by the President for reappointment for an additional term to the same office in an Executive department without a break in service, to continue to serve in that office subject to the time limitations in section 3346, until such time as the Senate has acted to confirm or reject the nomination, notwithstanding adjournment sine die.
(2)
For purposes of this section and sections 3346, 3347, 3348, 3349, 3349a, and 3349d, the expiration of a term of office is an inability to perform the functions and duties of such office.
(Added
Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998,
112 Stat. 2681–611; amended
Pub. L. 108–271, § 8(b), July 7, 2004,
118 Stat. 814.)
I doubt it but perhaps you can get the senate to act against President Trump Dreamer?
