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Marty Lederman @marty_lederman
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2/ I think it's almost all correct, and that, in particular, Berry does a very nice job of beginning to explain why most of the pre-1868 examples relied upon by OLC don’t support the Whitaker assignment.
3/ In this thread I’ll identify the most important points in Berry’s post, note one place where I slightly disagree with Berry (about the nature of the Eaton decision), and explain why the pre-1868 cases offer Trump even less support than Berry suggests.
4/ i. Berry gives a great, really clear account (more detailed that @walterdellinger and I were able to do in our post, below) of why, under the Shoemaker/Weiss doctrine, there's no AC problem ...…
5/ ... when the POTUS assigns a high-level Senate-confirmed (PAS) officer serving in the same department to perform a Department Head's functions.

ii. Berry also confirms the point @walterdellinger and I made that the early generations probably didn’t see any AC concerns ...
6/ ... because they assumed that someone temporarily performing a Department Head's functions wasn’t holding an office *at all*, at least not where such employments were expected to be "transient," as the vast majority were.
7/ iii. Indeed, Berry nicely shows that the vast majority of the pre-1868 cases cited by OLC were nothing like the Whitaker case because the tenures were almost uniformly very short *and* because the majority of them occurred while the PAS Head was ill or out of DC--i.e., ...
8/ ... where that PAS Head presumably could still countermand the "acting" official's actions. In that vast % of cases, then, it might truly be said that the "acting" official was "inferior" to the principal officer, if he was an officer at all.
9/ iv. Berry's also correct that the Eaton case *formally* was of this form--the PAS officer there (Boyd) did not technically leave office, but was "merely" ill. However, that wasn't the basis for the Court's decision in Eaton.
10/ Boyd, the PAS counsel, knew he was dying, and there wasn't a realistic prospect he would or could, from back in the States, supervise Eaton’s actions in Siam. Accordingly, the decision in Eaton wasn't based on the theory that Eaton remained an officer "inferior" to Boyd—
11/ --which wouldn’t have satisfied the AC, anyway, because Eaton wasn’t appointed by the President or Secretary of State. Instead, the Court ruled, in effect, that the Constitution must be read to recognize some play in the AC joints for exigent cases ...
12/ ... where someone not Senate-confirmed must perform the Head’s functions "for a limited time and under special and temporary conditions."

v. This "exigency" understanding of Eaton explains much of the *remainder* of the early history—
13/ -- those cases (and Berry's right that they're a decided minority of the cases) in which the POTUS assigned someone to perform the functions of a Department Head who had died, resigned, become incapacitated, or (rarely) was removed.
14/ Part of that practice --probably a very small part of it--can be explained by a combination of (i) the widespread assumption that the interim person held no "office" at all and (ii) an Eaton-like "exigency" exception to the AC’s method of appointment for cases involving ...
15/ ... "special & temporary conditions."

vi. Even the relatively small part of the early history involving cases of true “vacancies,” however, doesn't justify the Whitaker assignment, for several other reasons that Berry doesn't emphasize.
16/ For instance, many of the cases occurred while the Senate was in recess, and were therefore exercises of the POTUS's authority under the RAC. And of the very, very few cases that involved a true "vacancy" (not mere absence) *and* that happened while the Senate was sitting,
17/ ... few, if any, were necessitated by the POTUS's own decision to remove or force the resignation of the Department Head. And--of greatest importance--very few, if any, of the cases--OLC doesn't cite a single one--involved an assignment of the Department Head's functions ...
18/ someone who was not PAS *while there was a PAS officer in the Department, and already in DC, whom the POTUS could have chosen instead.*

In other words, in virtually all the early cases that are even arguably relevant, the POTUS had no option *other than* to choose ...
19/ ... someone who could not satisfy what would later be understood as the Shoemaker/Weiss test. As in Eaton, then, those were truly cases of "special conditions" that justified deviation from the procedures of the AC, even assuming that the cases involved "offices" at all.
20/ All of which is to say that although Berry does a great job showing how much of the early history is inapposite, he doesn't go far enough: I'd wager DOJ will be able to cite very few, if any, pre-1868 (or even post-1868) cases remotely analogous to the Whitaker situation.
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