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9 Nov, 5 tweets, 2 min read
There’s currently a Senate-confirmed Deputy Secretary of Defense — David Norquist. Under 10 U.S.C. § 132(b), *he* is supposed to become Acting Secretary in the event of a vacancy.

Unless Trump fired him, too. Image
To be clear, *if* the Federal Vacancies Reform Act allows the President to appoint someone else as Acting Secretary notwithstanding § 132(b), Miller is a valid choice (because of his Senate confirmation). But it's not at all obvious that the FVRA *does* override the DoD statute.
The last time this came up, Trump named as Acting Secretary Patrick Shanahan (who was already serving as the Deputy Secretary), which avoided the issue:

And not for nothing, but he's also ignoring the currently governing Executive Order on DoD succession, which likewise puts the Deputy Secretary first:

govinfo.gov/content/pkg/FR…
Finally, as @jgeltzer points out, Miller isn't eligible to be *Secretary* of Defense because he hasn't been retired from the military for seven years.

He can still be "Acting" if otherwise permissible, but yet another reason why this is messed up..

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More from @steve_vladeck

Steve Vladeck Profile picture
28 Oct
1. An attempt to clear up confusing public discourse about counting ballots, in five tweets.

When Trump talks about no "counting" after Election Day, he could mean one of two things:

A) No tabulating *at all* after 11/3; or
B) No counting of ballots *received* after 11/3.
2. Claim A is just insane. As I've explained in detail in another thread, *no* state finishes counting all of its ballots *on* Election Day, and every state but one waits at least a week before fully certifying their results. Federal law is clear on this:

3. And so, when Trump says that courts are siding with him about no counting after Election Day, he's just flat-out wrong.

Claim B is trickier because rules for when absentee/mail-in ballots must be *received* necessarily vary by state, as there's no uniform federal standard.
Read 5 tweets
Steve Vladeck Profile picture
27 Oct
1. In response to the President's claim that we "must have final total" election results *on* Election Day, here's a #thread on how and why presidential elections *actually* work under state and federal law — and why, in fact, we've *never* had final results *on* Election Day.
2. Let's start at the beginning. A U.S. presidential election is actually 51 *different* elections (50 states + DC), in which each jurisdiction votes for presidential *electors.* It's the *electors* who vote for President — and they don't meet until *41 days* after the election:
3. Why 41 days? To give states time to finish counting. Although Election Day is fixed by law, Congress has allowed states to set their own rules about when they count ballots — including whether and to what extent to allow mail-in ballots, and by when those ballots must arrive.
Read 10 tweets
Steve Vladeck Profile picture
11 Aug
A helpful and accessible @imillhiser explainer about #SCOTUS’s “shadow docket.”

I’ll just add that, compared to my data Ian cites, we’re now up to *34* emergency applications from the Trump DOJ (13 this Term), and *11* 5-4 shadow docket rulings since October. It’s getting worse.
Here’s the DOJ data:

And here’s the list of the 11 (public) 5-4 “shadow docket” rulings this Term, with the caveat that shadow docket rulings sometimes have hidden dissenters:

Read 4 tweets
Steve Vladeck Profile picture
6 Jul
#SCOTUS's last *two* opinions for the day, handed down simultaneously, are in the "faithless elector" cases:

Short version: "A State may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President."

supremecourt.gov/opinions/19pdf…
There are two opinions because the Colorado case raises the same issue as the one decided in the Washington case.

The Court was unanimous as to the result, but Justice Thomas concurred only in the judgment (in an opinion joined in part by Justice Gorsuch).
No more opinions are expected today, so we still await the Trump tax cases, the ACA contraceptive mandate, the ministerial exception to Title VII, and the Oklahoma/Native American jurisdictional dispute.

We'll should hear later today when the Court will next hand down decisions.
Read 4 tweets
Steve Vladeck Profile picture
22 Jun
1. The new defense of Barr's conduct over the weekend is that he was just trying "to find a job for [Jay] Clayton."

There are at least three problems with this effort to whitewash what Barr did and said—all of which suggest that he was, indeed, acting in bad faith.

A #thread:
2. First, the Clayton story makes no sense because the Senate still uses blue slips for U.S. Attorneys.

There is a 0.0% chance that both Sen. Schumer and Sen. Gillibrand would've signed off on confirming someone to that job with zero prosecutorial experience—and Barr knows that.
3. Second, Barr's Friday night statement—in his own words—is affirmatively misleading. Leaving aside Carpenito (more on him in a moment), the statement claimed that Berman was "stepping down," even though Barr (1) knew he wasn't; and (2) lacked the power to fire him directly.
Read 6 tweets
Steve Vladeck Profile picture
20 Jun
Berman is the Acting U.S. Attorney by dint of a *judicial* appointment.

There’s a pretty good argument that, per the plain language of 28 U.S.C. § 546(d), he gets to keep serving in that post until the *vacancy* is filled (through Senate confirmation of a permanent successor). Image
Of course, the Trump DOJ may argue that § 546(d) is unconstitutional insofar as it prevents the President from removing Berman, but that’s complicated here by Berman being an *Acting* U,S. Attorney—over whose appointment and removal Congress can arguably exercise *more* control.
As @marty_lederman points out, there’s a 1979 OLC opinion concluding that the President—but *not* the Attorney General—can fire a U.S. Attorney appointed under § 546(d):

justice.gov/sites/default/…

OLC isn’t a court, of course—and even in its view, Barr couldn’t fire Berman.
Read 5 tweets

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