Where is the appointment clause located?
The Appointments Clause, located in Article II, Section 2, Clause 2 of the Constitution, mandates that principal officers of the United States be nominated by the president and confirmed by the Senate.
Who is the chief law enforcement officer of the United States?
The attorney general is the chief law enforcement officer of the United States. He or she supervises government officials whom the Senate has confirmed as well as the special counsel, appoints immigration judges, decides when to enforce federal statutes and authorizes national security warrants.
Who filed a lawsuit against Whitaker?
On November 19, Senators Richard Blumenthal (D-Connecticut), Sheldon Whitehouse (D-Rhode Island) and Mazie Hirono (D-Hawaii) filed a lawsuit against Whitaker and Trump in the United States District Court for the District of Columbia.
Who is Marjorie Cohn?
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and a member of the advisory board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.
The Appointments Clause
The first and most powerful argument against Whitaker’s appointment is that the Constitution would seem to forbid it. Neal Katyal and George Conway made this argument in a Thursday New York Times op-ed, and it is appealingly straightforward. The Constitution’s Appointments Clause requires any “principal o…
Justice Department Succession Rules
- As I noted above, the Trump administration is relying on the FVRA to justify replacing Sessions with Whitaker. But there’s a fundamental problem with this interpretation: It’s debatable whether that law even applies here. The FVRA deals with Cabinet-level vacancies in general terms—but Congress has passed a more specific statute directly governing succession at the Department o…
Resignation vs. Termination
- There’s a final reason the FVRA might not apply in this situation. The law permits the president to temporarily replace an executive branch officer with a long-serving official in the agency or an individual who has already been confirmed by the Senate for another position. But this rule only kicks in when the officer “dies, resigns, or is otherwise unable to perform the functions and dutie…
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