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Thomas Berry on the Whitaker Appointment
Michael Ramsey (With Update by Andrew Hyman)

At the Notice and Comment blog, Thomas Berry (Pacific Legal Foundation): Is Matthew Whitaker’s Appointment Constitutional? An Examination of the Early Vacancies Acts.  The post discounts the main theory advanced by the Justice Department -- that the Acting Attorney General in an inferior officer -- and instead considers that perhaps he is not an officer at all:

Why then did those who passed these [early vacancy] acts believe they were constitutional? Several pieces of evidence suggest that rather than viewing acting officials as inferior officers, Congress instead viewed these officials as not officers at all.

Research into the meaning of the word “officer” at the time of the Framing has shown that one defining feature of an office is that it is “ongoing” or “continuing.” “Both under the Articles of Confederation and during the First Congress, there was a category of contractors or other nonofficer persons whom officers hired for services outside the Article II appointment process. Therefore, one additional requirement for federal officer status appears to be responsibility for ongoing duties.” Jennifer Mascott, Who Are “Officers of the United States”? 70 Stan. L. Rev. 443, 534 (2018). ...

There is also evidence in the Constitution’s text that only those with ongoing duties are officers. “The Constitution refers to an office as something that one ‘holds’ and ‘enjoys’ and in which one ‘continues,’ and these descriptions suggest that an office has some duration and ongoing duties.” Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 101 (2007).

 In drafting the text of the 1792 act, Congress seemed to take pains to avoid describing an acting officer as actually “holding” an office. Instead, these officials are “authorize[d] . . . to perform the duties of the said respective offices.” While such semantic distinctions should not necessarily make the difference between whether a statute is upheld or struck down, they do provide valuable insight into the reasoning of Congress when it passed the act. And they strongly suggest that Congress viewed an “authorization” under the act as an assignment to temporarily perform a set of duties for the express purpose of achieving a single project: that of caretaking. Congress most likely viewed such an assignment as distinct from holding an office.

As to practice:

Using several sources, I attempted to make as complete a list as possible (though one in which I have likely missed at least a few) of acting Secretaries of State, War, and Treasury during this period.  What does this history show? First, although the early Vacancies Acts made no distinction between who could be appointed during absences and vacancies, presidents showed a clear pattern in their selections. In the case of absences of the secretary due to travel or sickness, the chief clerk in the department, an inferior officer not confirmed by the Senate, was usually chosen to serve as acting secretary. In the case of vacancies, however, it was more common for presidents to select another Senate-confirmed secretary to serve as the ad interim secretary, especially if the vacancy was to last a significant time.


[T]he [Office of Legal Counsel] opinion’s flaw is that, like previous OLC opinions, it once again glosses over the distinction between acting and ad interim officers. The opinion lumps these two categories together in order to reach the figure of “at least 160” non-Senate-confirmed temporary department heads serving between 1809 and 1860. Id. at 10. But examining these appointments in more detail shows that the significant majority were only acting heads, not ad interim. To give one example, the opinion states that at least 110 chief clerks temporarily led the Departments of State, War, and Treasury between 1809 and 1860 Id. at 9–10. Of the 93 that I could identify, 80 were acting heads serving during travel or sickness, and only 13 were ad interim. By not differentiating these two types of temporary service, the opinion gives the impression that non-Senate-confirmed officials were appointed to lead departments after a death or resignation far more frequently than actually occurred.

And in conclusion:

When acting officers served for only a limited, non-extendable amount of time, a more plausible argument could have been made that they were brought on to perform only a distinct and non-continuing project. Indeed, this is one potential explanation for why Congress amended the first Vacancies Act after only three years to add a six-month upper limit on acting service. (And although it would be difficult to enforce, an even stronger case could be made that acting service is non-continuing if acting department heads were limited to only overseeing the projects started by their predecessors, not starting any new projects.) Whether the early Congresses were correct in their view that the time-limited 1795 act complied with the Appointments Clause is a close question. But under the current Vacancies Act, the question is less close. Given that Whitaker has not been confirmed by the Senate, has no superior but the president, and has no certain end-date for his duties, I believe it is highly likely that his service violates the Appointments Clause.

(Thanks to Andrew Hyman for the pointer).

UPDATE (by Andrew Hyman): 

Here is the Solicitor General’s opposition to the Motion to Substitute in Michaels v. Whitaker:
And here is a handy link to the Maryland litigation.