Here’s why this seems tricky for the courts: there’s clearly tons of precedent for non-confirmed officers stepping in to a superior’s role briefly in cases of genuine exigency. It would be hugely impractical if offices had to go vacant whenever a cabinet secretary has surgery.
But I’m pretty sure the vast majority of the cases being cited represent genuine exigencies: the officer is sick or dies or resigns unexpectedly. They don’t present the problem of a president deliberately gaming the system to replace a confirmed official with a crony.
Trouble is, it’s hard to see how a court distinguishes this case without opening a can of worms. *Technically* Sessions resigned, even though we all understand he was de facto fired. Do the courts get sucked into making ad hoc determinations about which exigencies are “real”?
Ditto with “temporary.” As I noted in this blog post at Cato, the way the FVRA clock for presidentially filled vacancies works, Trump could in theory probably keep Whitaker in place for the rest of his term if that’s what he decides he wants to do. cato.org/blog/hacking-a…
He just has to wait seven months, nominate someone so unacceptable that even the GOP-controlled Senate won’t confirm them, then repeat the process. But, of course, we can’t know in advance whether he’ll actually do that. So when is Whitaker no longer “temporary”?
Courts like bright line rules. But the two obvious bright line rules here are “confirmation required, no exceptions”—which is both impractical for real emergencies and inconsistent with historical practice—and a deferential rule that makes the Appointments Clause easy to hack.
In this case maybe they have an out, because Sessions’ explicit ‘at your request’ gives you the potential bright-ish line of: “confirmation required when it’s clear the vacancy arises from the president effectively removing the confirmed officer.”
But it won’t necessarily be quite that clear (suppose Sessions had just tired of the President’s unrelenting public attacks?) and I’m sure the courts don’t want to put themselves in the position of making ad hoc determinations about which vacancies are genuine exigencies.
This is a special case of why Trump’s indifference to norms creates so many problems. It’s very hard to create legal rules that give the executive flexibility to deal with unexpected circumstances without also creating loopholes someone determined to game the system can exploit.
