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Jed Shugerman @jedshug
, 14 tweets, 8 min read Read on Twitter
More reasons why Whitaker appointment as AG is illegal: Vacancies Reform Act arguably does not apply to the AG.
Please read this report by the Senate Committee on Govt Affairs on the VRA, linked below. 1/ h/t @JamesDissent
Adding to my earlier post:…
2/ Senate Committee Report, summary on p. 2:
"The bill applies to all vacancies in Senate-confirmed
positions in executive agencies with a few express exceptions.
Second, current laws...that provide for the President or..."…
3/ "...the head of an executive department to designate an officer to perform the functions and duties of a specified office in an acting capacity are maintained, as are those statutes that themselves stipulate who shall serve in a specific office in an acting capacity."
4/ Return to 28 USC 508 on the DOJ. This statute refers to "3345," which some assume refers to the 1998 Vacancies Reform Act. This seems to be a misconception based on the notes on this statute. It appears that "3345" is a provision passed long before the VRA... @steve_vladeck
5/ Please read the notes on Cornell's site, the best site for tracking statutes' development. I may be wrong, but it appears to me that 5 USC 3345 originated in 1966 and was modified in 1988. It predated the 1998 VRA...…
6/ Thus, when Congress passed the DOJ statute, 28 USC 508, and mentioned "3345," in the 1940s, 50s, and 60s, Congress was not originally referring to the VRA, but an *earlier statute.* There is no sign on the site that the DOJ statute 508 was ever modified to refer to the VRA.
7/ So Whitaker's appointment depends upon the VRA applying to the DOJ statute, but those who suggest that DOJ statute refers to the VRA and thus assume the applicability of the VRA *appear* to have erred on the legislative history. The DOJ statute 508 appears to predate the VRA.
8/ So let's say I'm right that we can't assume the VRA applies to the DOJ simply because there is a pre-existing cross-reference to an older provision.
Then we have to rely on what the VRA says, not what's in the DOJ statute 28 USC 508.
9/ I've shown earlier that VRA is unclear. The Senate Committee Report clarifies.
So does 28 USC 508, the DOJ statute, allow "the head of an executive department to designate an officer to perform the functions and duties of a specified office"?
Yes. Thus the VRA doesn't apply.
10/ See 28 USC 508(b): "The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General." The AG can designate officers to perform as AG. Thus the VRA does not apply.
11/ But wait, there's more. The Senate report also say the VRA does not apply to "those statutes that themselves stipulate who shall serve in a specific office in an acting capacity."
28 USC 508(b) contains such stipulations for the AAG, and arguably/implicitly for the DAG.
12/ Read the Senate's purpose for adopting this statute:
To stop presidents from "thwarting the constitutional mandate that
persons serving in advice and consent positions do so through
the Senate's approval of such service."
THROUGH SENATE APPROVAL. Rosenstein. Not Whitaker.
13/ If I'm wrong, tell me. But if I am right, Whitaker's appointment violates 28 USC 508, b/c the VRA does not apply at all.
@steve_vladeck @AshaRangappa_ @emptywheel @MaxBoot @benjaminwittes @Susan_Hennessey @AJosephOConnell @neal_katyal @gtconway3d
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