OLC’s memo on Whitaker documentcloud.org/documents/5113…
One problem with this memo:
It claims on p. 5 that 28 USC 508, which was last modified in 1953, cross-references a law enacted in 1998. In fact, it refers to the predecessor statute, the 1868 Vacancies Act, which didn’t allow POTUS to unilaterally replace the attorney general.
It claims on p. 5 that 28 USC 508, which was last modified in 1953, cross-references a law enacted in 1998. In fact, it refers to the predecessor statute, the 1868 Vacancies Act, which didn’t allow POTUS to unilaterally replace the attorney general.
A more thematic problem—the memo fails to consider that its pre-trump historical examples of temporary ‘acting’ appointments in other principal offices concern cases of exigency outside of the president’s control, not forced resignation or removal.
Hypothetical: A new president whom everyone is kinda worried about. To ease concerns, she appoints a cabinet of party elders who glide through the senate. The president insists each cabinet member take on a chief of staff whom she chooses. 91d later, she fires the whole cabinet.+
This hypothetical president announces the chiefs of staff to the removed dept heads will form her new ‘acting’ cabinet—to serve for 210d and then be replaced by their own chiefs of staff, whom the president will select as well. “The era of senate confirmations is over,” she says.
Would that hypothetical seizure of power be lawful and constitutional? The OLC opinion says yes. I disagree.
