Matt Whitaker's appointment as Acting Attorney General is statutorily illegal:
Based on both a close textual reading and a purposive reading of the Vacancies Reform Act and the DOJ statute, 28 USC 508.
shugerblog.com/2018/11/09/whi…
Based on both a close textual reading and a purposive reading of the Vacancies Reform Act and the DOJ statute, 28 USC 508.
shugerblog.com/2018/11/09/whi…
I’ll be on @Lawrence @TheLastWord @MSNBC to talk about Matt Whitaker’s illegal appointment as Acting AG. Around 10:15.
Update on Exclusivity in VRA: I read English v. Trump, which holds that the VRA provides an additional means for a president to appoint acting officials, when it is not the exclusive means: "Sections 3345 and 3346 are the exclusive means for temporarily authorizing... 3/
4/ an acting official to perform the functions of any office...unless... [etc]. The court concluded the VRA is often the exclusive procedure for vacancies, but in some cases like the CFPB, the VRA remains an alternative path in addition to the agency statute's more specific path.
5/ On one hand, there is a textual basis for understanding exclusivity in this way. On other hand, it is hard to reconcile this reading with the apparent purposes of these acts. If the 1998 VRA was intended to limit presidential discretion and to improve the professionalism...
6/ ...it is puzzling why the VRA would create broader discretion with more alternatives for a president, especially in the DOJ when the underlying statute has such a clearly limiting structure against presidential abuses.
7/ So perhaps there is a valid narrow textual argument for the president's discretion, but a purposive interpretation would seem to cut in the opposite direction, and might suggest reading the word "exclusive means" differently from how the English v. Trump decision had read it.
8/ Bottom line: I’m softening my strict textual claim here, but I am highlighting my purposive question: why would statutes in 1977 and 1998 meant to limit presidential power and create orderly succession have created such open discretion, risk of Watergate-like abuses, & chaos?
