ANY DAY NOW

President T (his new self-given moniker) is in for a rude awakening.

The law, the Department of Justice, and the courts have been Trump’s bane ever since his inauguration, but he appears to think that he has finally managed to outmaneuver Mueller and related foes on the legal front by replacing Jeff Sessions with a pliant stooge as Acting Attorney General of the United States.

If so, he is sorely mistaken. The Office of Legal Counsel opinion advising him that the appointment of Whitaker as Acting AG is legal is in error; the appointment is invalid; and under the law the Acting Attorney General should be — and under the law actually is — Rod Rosenstein, not Matthew Whitaker. As Judge Andrew Napolitano, the conservative / libertarian legal commentator for Fox News has said, the question is not if but when the courts will strike down the appointment. And that is likely to happen quite soon.

Keep your attention on two motions challenging the Whitaker appointment that have already been filed by Thomas C. Goldstein, a prominent Supreme Court litigator.

One was filed by Goldstein and the State of Maryland on November 13 in the Federal District Court for Maryland (11th Circuit Court of Appeals), pursuant to a State of Maryland challenge to Attorney General Jeff Sessions’ decision not to defend a key provision of the Affordable Care Act in federal court. Another, an appeals motion (petition for certiorari), was filed by Goldstein on November 16 with Noel Francisco, the Solicitor General of the United States, in Washington DC pursuant to a gun rights case which was already on appeal (petition for cert) in the Ninth Circuit. Goldstein has joined with the attorneys for appellant Barry Michaels in the gun rights case, and with the Attorney General of the State of Maryland in the ACA litigation. The motion for a preliminary injunction and substitution in the Maryland case, and the petition for cert in the Michaels case, are of one piece, and were undoubtedly written by Goldstein.

Goldstein’s involvement in these cases is significant. His challenges to the appointment are the first out of the gate, and they are competently done: indeed, it is hard to see how they could be done much better. This is important because, in the adversarial American legal system, courts will hesitate to take such cases unless they have confidence that both sides in the dispute will be fairly and adequately represented. That requirement is satisfied in this case.

The Office of Legal Counsel (OLC) has already issued a 20 page brief arguing that the President would be legally entitled to appoint Whitaker to the position of Acting AG. The argument that the appointment is invalid has been set out in a very powerful and lucid way in two legal motions by Goldstein.

Furthermore, the two Goldstein motions are timely. Goldstein and the State of Maryland have requested U.S. District Judge Ellen L. Hollander to order a hearing on the motion for the preliminary injunction, and Goldstein has said that he expects an order scheduling one to be issued as early as this week. In the petition for cert in the Michaels case, Goldstein has respectfully suggested the following expedited scheduling for the Michaels petition for substitution: November 26 (already past), Opposition of the United States and Amicus Briefs in Support of Either Party; December 3, Reply in Support of the Motion.

The case for prompt action by the courts in response to the Whitaker appointment is clear. As Goldstein wrote in his petition for cert:

“Every day, Mr. Whitaker would presently be expected to take a number of significant official acts, including appointing immigration judges, authorizing national security warrants, determining not to enforce federal statutes on the ground that they are unconstitutional, approving or withdrawing regulations, and overseeing the investigation of Special Counsel Robert Mueller.”

If this court declines to resolve this question immediately and instead determines several months in the future that Mr. Whitaker’s appointment was always invalid, then ‘unwinding’ all of those personal orders would be a fraught and disruptive exercise that could embroil the federal courts in innumerable collateral disputes.”

Why Whitaker’s appointment as Acting AG is invalid

The Whitaker appointment is invalid and without force because it violates 28 U.S.C. § 508, the section of organic statute Title 28, Chapter 31 that designates who is to serve as Acting Attorney General in cases of a vacancy in the office of Attorney General, or of his absence or disability. (For ease of reference, I will frequently refer to 28 U.S.C. § 508 as the Attorney General Succession Act.)

There has been a succession of acts by Congress, beginning in 1870, that have designated which officers of the Department of Justice shall serve ad interim as Acting AG when vacancies occur. The designations have always been mandatory, not optional.

In 1953, Congress created the position of Deputy Attorney General for the first time, and designated the Deputy Attorney General as the mandated successor to the Office of Attorney General of the United States in the event of a vacancy. The present version of this act, as amended in 1977, is codified at 28 U.S.C. § 508. It continues the designation in 1953 of the Deputy AG as the AG’s successor. That designation goes into effect as the default automatically, as soon as the office of AG becomes vacant.

Matthew Whitaker was not the Deputy AG at the time of his appointment. Rod Rosenstein was. It follows that Whitaker’s appointment is invalid and without force, and that Rod Rosenstein is and always has been the only valid Acting AG after Jeff Sessions’ forced resignation on November 6.

The Vacancies Reform Act of 1998 does not provide an alternative, optional method for the appointment of an Acting AG

An Office of Legal Counsel memo dated November 7 memorializes the oral advice that office had given to the President that he was legally entitled to appoint Whitaker. It gave that advice on the grounds that the appointment was authorized under another statute, the Vacancies Reform Act of 1998. But this advisory opinion is clearly erroneous.

The Vacancies Reform Act (VRA) is codified at 5 U.S.C. §§ 3345–49d. For the purpose of determining the legality of the Whitaker appointment, sections §§§ 3345, 3346, and 3347 are particularly important, and must be interpreted together as part of a single statute.

Section 3345, taken alone, does permit the Whitaker appointment, because subsection (a)(3) authorizes the President (and only the President) to direct any “officer or employee” of the Department of Justice who satisfies certain conditions to serve ad interim as Acting AG, and as it happens, Matthew Whitaker did in fact satisfy those conditions.

The problem with appealing to 5 U.S.C. § 3345 to justify the Whitaker appointment, and in fact the fatal objection to it, is that 5 U.S.C. § 3345 cannot be read alone: it must be read as part of the larger statute, and in particular with 5 U.S.C. § 3347(a)(1)(B).

5 U.S.C. § 3347 reads in relevant part:

(a) Sections 3345 and 3346 are the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) for which appointment is required to be made by the President, by and with the advice and consent of the Senate [often abbreviated as a PAS position], unless —

(1) a statutory provision expressly —

…

(B) designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity;

You see the problem at once: the earlier statute (28 U.S.C. § 508), which has been the controlling statutory authority for appointing individuals to serve as Acting AG ever since its enactment, is such a provision.

The Office of Legal Counsel of the DOJ advised the President that, because of the VRA, the AG Succession Act does not make the designation of the Deputy AG as Acting AG mandatory; it only makes it optional. 5 U.S.C. § 3345(a)(3) is therefore “available” to the President to use despite 28 U.S.C. § 508, which is the more specific and earlier provision.

The fatal objection to this opinion is that the AG Succession Act, although it is a later enactment, is a provision that is specific to the question of succession, and it is a fundamental rule of statutory construction that a more specific enactment prevails over a more general one, even if it is an earlier enactment. The rule that the special prevails over the general, even when the general postdates the special, is called lex specialis — or at greater length, lex specialis derogat legi generali (“Special law repeals general laws”: A principle according to which a rule of lex specialis is deemed to apply notwithstanding … [for example, if the special law antedates the general law].

In effect, the OLC’s advisory opinion claims that Congress intended the VRA to repeal by implication a standard rule of statutory construction according to which the specific takes precedence over the general. But courts disfavor repeal by implication. It is disfavored so strongly, in fact, that if Congress had wanted to make the application of the AG Succession Act optional rather than mandatory, it would have had to do so explicitly.

There are various ways Congress could have done this. It could have amended the AG Succession Act (28 U.S.C. § 508) to make it an option for the President, rather than the mandatory, automatic default rule. Or it could have written the VRA differently, and specified that the President’s appointment under 5 U.S.C. § 3345(a)(3) applies notwithstanding 28 U.S.C. § 508. Or, perhaps best of all, it could have written 5 U.S.C. § 3347(a)(1)(B) to apply concurrently rather than merely exclusively (and restrictively) with respect to office-specific provisions for succession like the AG Succession Act.

In the US code, § 3347 of Title 5 is entitled “Exclusivity.” Exclusivity is a common term of American jurisprudence. Courts either have exclusive jurisdiction or concurrent jurisdiction. Federal courts have exclusive jurisdiction for some but not all cases involving federal laws. (Tax law and bankruptcy law are two examples where federal courts have exclusive jurisdiction.) A court with exclusive jurisdiction is the sole forum for determination of a particular type of case, and has the power to adjudicate such cases to the exclusion of all other courts.

The jurisdiction of federal courts, however, is restricted (non-concurrent) in relation to matters covered only by state laws. Federal courts do not hear or decide any cases that are covered only by state laws. (Traffic violations and family disputes are two typical examples.) The jurisdiction of federal courts is exclusive for many cases covered by federal law, but always restricted (non-concurrent) in relation to state courts for matters covered only by state laws.

The jurisdiction of a court is said to be concurrent when two or more different courts possess the authority to adjudicate a particular kind of case. State courts have concurrent (unrestricted) jurisdiction with federal courts over many kinds of cases involving federal law, but their jurisdiction is exclusive on matters that are covered only by state law.

State court jurisdiction is therefore broader than federal jurisdiction. Federal courts are not empowered to hear or decide cases that are solely matters of state law, whereas state courts do have concurrent jurisdiction with federal courts on many matters that concern federal law. In American jurisprudence plaintiffs will often choose the courts they prefer, based on their calculations about which courts offer the best prospects for a successful outcome. (This is called forum shopping.)

The title of 5 U.S.C. § 3347, which covers sections 3345 and 3346, is “Exclusivity.” In the context of federal law, this suggests that the “jurisdiction” of 5 U.S.C. § 3345 is exclusive but not concurrent. Specifically, the language of § 3347(a)(1)(B) and the title of 5 U.S.C. § 3347 suggest that the section’s “jurisdiction” is not concurrent and that its appointment authority does not reach those cases where “(1) a statutory provision expressly — … (B) designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.”

To override this presumption, the text of the VRA would have had to provide explicitly that it is not restricted, and that other statutes that are office-specific have concurrent “jurisdiction” with 5 U.S.C. § 3347(a)(1)(B). As it is, there is nothing in 5 U.S.C. § 3347 that compels, or even suggests, that it was intended by Congress to repeal by implication the AG Succession Act’s role as the sole, mandatory, controlling authority for designating the person who is to serve as the Acting AG when the office of the Attorney General becomes vacant.

The OLC’s advisory opinion addresses none of these considerations. It reads a repeal by implication into the text of the VRA without any textual argument at all. The opinion simply asserts:

“[t]he Vacancies Reform Act nowhere says that, if another statute remains in effect, the Vacancies Reform Act may not be used.”

This is an extraordinary statement given that fundamental, bedrock rules of statutory construction (lex specialis and the presumption against repeal by implication) are invoked precisely when there isn’t an explicit statement to the contrary. Indeed, these are the only occasions where the rule of lex specialis and the rule of statutory construction disfavoring repeal by implication have any application at all.

It is hard to believe that the Office of Legal Counsel has read the two statutes together in this absolutely indefensible and even inane way, but there it is. And since the opinion actually makes this assertion, it may not be pointless to observe that no legal authority has ever asserted that a law cannot mean or imply x unless it explicitly says x. Even textualist legal scholars and jurists have never asserted such an absurd proposition.

Even the ur- and uber-textualist of them all, Justice Antonin Scalia, asserted that rules of statutory construction must be applied as appropriate in cases like the above. (Bannon, Congressional Research Service, Statutory Interpretation: Theories, Tools, and Trends, citing SCALIA & GARNER: “Repeals by implication are disfavored . . . . But a provision that flatly contradicts an earlier-enacted provision repeals it.”) But of course the VRA explicitly left the AG Succession Act standing, and the VRA doesn’t “flatly contradict” the AG Succession Act; indeed, it doesn’t contradict it at all.

There are no compelling reasons in this case to ignore the presumption against repeal by implication. On the contrary, the compelling arguments all point in the opposite direction.

5 U.S.C. § 3346: the time-limits for vacancy appointments

Though the OLC’s opinion fails to cite any text in the law itself to justify its dismissal of the rules of lex specialis and the presumption against repeal by implication, it does cite a passage from the Senate committee report on the VRA which, it asserts, shows that Congress intended to make 5 U.S.C. § 3345(a)(3) an option for the President and application of the AG Succession Act non-mandatory:

“with respect to the specific positions in which temporary officers may serve under the specific statutes this bill retains, the Vacancies [Reform] Act would continue to provide an alternative procedure for temporarily occupying the office.”

It helps to place this sentence in context. The whole paragraph of which it is a part reads as follows:

“Most of these retained statutes do not place time restrictions on
the length of an acting officer. The various authorizing committees [of the Senate, e.g., Agriculture, Armed Services, Foreign Relations] may choose in the future to reexamine whether these positions should continue to be filled through the existing procedure, or whether it would be advisable to repeal those statutes in favor of the procedures contained in the Vacancies Reform Act. The Committee believes that some of these statutes may have been passed without knowledge of the Vacancies Act. In any event, even with respect to the specific positions in which temporary officers may serve under the specific statutes this bill retains, the Vacancies Act would continue to provide an alternative procedure for temporarily occupying the office.”

The OLC opinion is correct to this extent: the passage does imply that the committee believed that the VRA would provide an option to the mandatory, automatic default rule of the AG Succession Act. But this just means that the statement was made in error and no doubt without due consideration, because it conflicts with standard rules of statutory interpretation, and courts are not likely to overrule a longstanding, fundamental rule of statutory construction based on a passing remark like this one in a committee report. This is particularly true of the Roberts court, which tends to overrule appeals to legislative history in favor of textualist interpretations and the standard, well-recognized rules of statutory construction.

Furthermore, the entire paragraph is actually incorrect in its interpretation of the bill. It asserts that the VRA would not impose its time restrictions on all federal offices requiring Senate confirmation. But in fact the VRA makes those time restrictions mandatory. This becomes clear when the VRA is taken as a whole, and particularly when 5 U.S. Code § 3347(a)(1)(B) is read in conjunction with the time restrictions in section § 3346.

Section 3347(a)(1)(B) addresses only the question of who may be appointed for vacancies. It says nothing at all about the time restrictions of those appointments. That is also true of the AG Succession Act. It, too, says nothing about time restrictions for its ad interim appointments. There is, therefore, no conflict between the AG Succession Act as the controlling statutory authority for who may serve as Acting AG, on the one hand, and the time restrictions on vacancy appointments that are provided in 5 U.S. Code § 3346, on the other. And since there is no conflict on this particular point, the AG Succession Act must be read as being subject to the time restrictions of § 3346 of the VRA.

This way of reading the two statutes also makes perfectly good sense, whereas the passage that the OLC’s advisory opinion cites from the committee report does not.

It is clear from the legislative history that what exercised Congress the most in debating and enacting the VRA in 1998 was the way the Department of Justice had treated the appointment of Bill Lann Lee. Lee was appointed to the position of Assistant Attorney General for Civil Rights by Attorney General Janet Reno. The Republican majority in the Senate worked to defeat as many appointments made by President Bill Clinton as it could. In response the Department of Justice during the Clinton Administration used a number of delaying tactics to keep Lee in the position of Acting Assistant AG for Civil Rights for almost three years. In fact, at the end of the Clinton Administration Lee was still serving in this position even though he had never been confirmed by the Senate.

The DOJ had attempted to justify its end-runs around the Senate confirmation process on the grounds that 28 U.S.C. § 508 was controlling, and therefore that its own internal department appointments were not subject to the time restrictions specified in the version of the Vacancies Act in effect at the time. (The AG Succession Act did not have then, and does not have now, any time limits for appointments made under its authority.)

It therefore makes sense that the amendment of the Vacancies Act that the Senate passed in 1998 (now known as the Vacancies Reform Act) applies time restrictions even to the appointments made under the authority of 28 U.S.C. § 508, because that is exactly the result that the committee and the Senate wanted. The passage from the committee report that the OLC advisory opinion cites is therefore in error for two reasons. It is wrong because it ignores fundamental, bedrock rules of statutory construction. But ironically, it is also in error because the committee failed to note that the bill would in fact make mandatory what the committee believed would be desirable but only optional.

THE CONSTITUTIONAL QUESTIONS RAISED BY THE WHITAKER APPOINTMENT, AND THE ROLE THESE QUESTIONS ARE LIKELY TO PLAY IN THE LEGAL CHALLENGES AGAINST IT

(to be continued)