Thread by @jedshug

The OLC’s constitutional argument for #Whitaker as Acting AG is entirely based on historical precedent.
They don’t acknowledge that it can’t find a precedent *ever* for a non-Senate-confirmed acting Attorney General as a "head of a department." 1/ shugerblog.com/2018/11/20/the…

2/
The only OLC precedent for an unconfirmed Acting AG is
1) from 1866,
2) for just a week
3) under the chaotic Andrew Johnson
4) who is infamous for flouting Congress and was impeached for it,
5) before the AG was even a “department head,” b/c DOJ did not yet exist.

3/ The Constitution identifies “Head of a Department” and “the principal officer of an executive department” as meaningful categories, whose significance is overlooked by OLC. Whitaker would be the head of DOJ. And thus he’d be a principal officer, needing Senate confirmation.

4/ As a matter of text, the Constitution identifies "the principal Officer in each of the executive Departments" and the "Heads of Departments" as principal officers. The OLC thinks it can re-label the Acting AG an "inferior officer," but that plainly contradicts the text...

5/ The OLC's reliance on post-Ratification practice simply cannot trump the plain text of the Constitution. (Sorry). Just because Congress passed something soon after 1787 (here, a Vacancies Act of 1792) doesn't mean it can effectively amend the Constitution. (See Marbury!)...

6/ The very first Congress passed the Judiciary Act of 1789, gaving the Supreme Court original jurisdiction (Mandamus), despite text of Article III narrowly limiting SCOTUS original jurisdiction.
The Marshall Court famously struck down that provision in Marbury v. Madison (1803).

7/ An early Congress also passed the Alien and Sedition Acts of 1798, which plainly violated the First Amendment. SCOTUS didn't strike them down, but they should have.
An early Congress couldn't just amend or repeal the First Amendment's text by statute. Obviously.

8/ SCOTUS overturned an act passed in 1812 b/c it violated the 5th Amendment. (Reichert v. Felps, 1868).
@kewhittington documented another dozen early fed statutes that federal courts invalidated, though they've been overlooked, in this terrific paper: scholar.princeton.edu/sites/default/…

9/ The OLC's approach is wrong. The text of Article II is not vague: The heads of departments are principal officers. An AG, acting or not, is head of the DOJ. An Attorney General - a department head - must be confirmed by the Senate, notwithstanding contrary historical practice.