Here's a brief thread on the @protctdemocracy suit on behalf of three senators challenging the Whitaker appointment--the subject of the article below, which treats the subject in greater depth.
(1) This suit is a big deal--not necessarily because as currently postured, the plaintiffs will win, but because a frontal challenge to the legitimacy of the attorney general should put serious pressure on the White House to nominate a respectable one.
(2) Standing for individual members of Congress challenging executive action is a dicey business. The case law on the subject is pretty restrictive, as we outline in the post, so the senators may have a problem getting into court.
(3) That said, this is a short-term problem that will not persist. Someone has standing to bring this case, and the longer Whitaker is in office, the more people will have standing. So consider this case a kind of placeholder. The issue WILL get litigated.
(4) When it does, the administration is very vulnerable on the merits. How vulnerable? Nobody knows. There are decent arguments on both sides of the legality question. But there is a significant chance that the courts will ultimately rule against the legality of the appointment.
(5) What's more, as @DavidKris recently argued, there's a small chance that the remedy a court will impose if the appointment is legally defective will be a drastic one. That is, leaving Whitaker in place could have catastrophic consequences. lawfareblog.com/whitakers-appo…
(6) That means that leaving Whitaker in place is playing with matches in room saturated with lighter fluid.
(7) The importance of this suit is that it puts all of these issues--and the stakes for the department--squarely on the table.
(8) As such, it should amp up the pressure on Trump to moot the matter out by nominating a candidate who can win quick Senate confirmation.
(9) That is, it would if Trump were behaving rationally.
(10) One other thing, a point we don't treat in the article: Having the litigation present these issues may well make it harder for Whitaker to do anything dramatic while in office.
Imagine how bad the Saturday Night Massacre would have been had Bork's service as acting attorney general been the subject of active litigation at the time he fired Archibald Cox.
(11) That's all I got.
