The state of Maryland is asking a federal judge to rule that current acting U.S. Attorney General Matthew G. Whitaker can’t serve in that capacity in a lawsuit involving Obamacare, setting up a challenge to his overall status in that position.
Maryland attorney general Brian Frosh filed the lawsuit on Tuesday, which claims under the Attorney General Succession Act and the Appointments Clause of the Constitution that Deputy Attorney General Rod Rosenstein should be serving as Acting Attorney General instead of Whitaker.
After former U.S. Attorney General Jeff Sessions was asked to resign on November 7, President Donald Trump named Whitaker, Sessions’ chief of staff, to serve as Acting Attorney General until Trump’s nominee to replace Sessions is approved by the Senate.
President Trump’s team believes Whitaker can serve in an acting capacity under a different statute, the Federal Vacancies Reform Act. Almost immediately, some legal commentators were arguing that the temporary appointment went afoul of the Appointments Clause. In a widely read New York Times editorial, George Conway and Neal Katyal said that Whitaker couldn’t serve as a “principal officer” of the federal government, unless he was confirmed by the Senate to the position he held prior to his Acting Attorney General appointment. (As chief of staff, Sessions didn’t need Senate approval to hire Whitaker in September 2017.)
The Justice Department’s Office of Legal Counsel is expected to issue an opinion upholding Whitaker’s appointment based on similar moves made in the administration of President George W. Bush and the intent of Congress to make the Federal Vacancies Reform Act the prevailing statute in such cases.
Maryland attorney general Frosh wants the United States District Court for the District of Maryland to use it powers under Federal Rule of Civil Procedure 25 to substitute Rosenstein for Whitaker in its lawsuit, and also to declare that Rosenstein is the official Acting Attorney General. It also wants a preliminary injunction to allow the case to move forward in that fashion.
Frosh also wants U.S. District Judge Ellen Hollander to issue the ruling on an expedited basis.
Just back in September, the Federal Vacancies Reform Act was in the news as legal experts debated if the potential firing of Rosenstein by President Trump would violate the law’s wording. There was a similar debate over Veterans Affairs Secretary David Shulkin’s replacement in March 2018.
Scott Bomboy is the editor in chief of the National Constitution Center.
