As the members of the Supreme Court attended a White House ceremony on the afternoon of Nov. 16, a group of lawyers was busy making work for the justices.
The lawyers filed a motion (pdf) in the high court, seeking a ruling on the constitutionality of Donald Trump’s appointment of Michael Whitaker as acting attorney general after Jeff Sessions’ Nov. 7 forced resignation. The request is unusual because the Supreme Court doesn’t take new cases—it resolves disputes over prior rulings—and no lower tribunal has yet decided if Trump flouted the law by appointing Whitaker without Senate approval. The motion argues that waiting is not an option because there will be chaos in the courts if the justices face this question later.
What’s interesting about the filing is that it’s premised on an administrative question. When one attorney general is replaced, the successor’s name is substituted on all subsequent cases involving the Department of Justice. The motion argues that legal matters throughout the US are vulnerable because Whitaker’s appointment is arguably unconstitutional and violates statutory rules. Deputy attorney general Rod Rosenstein would have been the correct successor, it argues. If it turns out later that Whitaker was not properly appointed, then countless cases decided in the interim will be undermined. The motion states:
The fact that the same issue has already arisen in multiple cases and has the potential to arise in thousands more is a feature, not a bug, of this promptly filed motion. There is a significant national interest in avoiding the prospect that every district and immigration judge in the nation could, in relatively short order, be presented with the controversy over which person to substitute as Acting Attorney General.
The petitioner in this case is Barry Michaels, who’s suing Sessions and other federal agents for violating his right to own a firearm based on prior non-violent criminal convictions, and now must substitute Sessions’ name on his filings with the proper acting AG’s name. The request made on Michaels’ behalf has nothing to do with the merits of that dispute. Michaels, like many others who have pending federal cases, has to identify the new AG on his paperwork, and his attorneys argue that deciding to use Whitaker’s name is problematic because he’s not supposed to be acting AG.
“In fact, Mr. Rosenstein—as the Senate-confirmed Deputy Attorney General—automatically succeeded to the role of Acting Attorney General under 28 USC section 508(a). Further, the appointment of Mr. Whitaker violated Article II of the Constitution,” according to Michaels’ attorneys. They argue that the dispute over the validity of Whitaker’s appointment means that the identity of the appropriate successor “is both contested and has important implications for the administration of justice nationally.”
The statute the motion refers to says that the deputy attorney general exercises all the duties of that office when the AG cannot. The deputy in this context is “the first assistant to the Attorney General.” Rod Rosenstein has been the deputy AG since 2017. So, based on the statutory rule, the motion argues, there’s no question that Rosenstein, and not Whitaker, should be acting as AG right now.
Moreover, Article II of the constitution, the Appointments Clause, provides that the president can nominate principal officers who are appointed “by and with the Advice and Consent of the Senate.” The head of the Department of Justice is a principal officer, the motion argues, and so Trump’s appointment of Whitaker with no Senate approval violates this clause.
Michaels’ attorneys state that because this is a pure question of law and there are no facts in dispute for a lower court to decide, and because the administration of justice nationwide is at stake, the high court can and must rule sooner rather than later. ”If this Court declines to resolve this question immediately and instead determines several months in the future that Mr. Whitaker’s appointment was always invalid, then ‘unwinding’ all of those personal orders would be a fraught and disruptive exercise that could embroil the federal courts in innumerable collateral disputes,” the attorneys argue. “Deciding this Motion promptly avoids those significant difficulties.”
Although the attorneys don’t believe Whitaker was properly appointed, they argue that even a ruling finding no violation on Trump’s part now would benefit the administration of justice “by removing the cloud of uncertainty over the appointment and by resolving the burgeoning number of challenges to it that are otherwise likely to be filed in the lower courts.”
As Steve Vladeck on SCOTUS blog pointed out on Nov. 17, there are already other challenges to the validity of Whitaker’s appointment. The US Court of Appeals for the District of Columbia Circuit is considering the question as part of a challenge to the validity of special counsel Robert Mueller’s appointment and investigation into Russian interference in the 2016 presidential election. Today (Nov. 19), Senate Democrats announced they are filing a lawsuit challenging Whitaker’s appointment.
The new Supreme Court motion, however, offers a relatively straightforward basis for taking up the fraught question, by making it a purely administrative question. The justices simply must identify who is the proper respondent to name in a petition for review.
Still, it’s unlikely that the high court will want to take up this preemptive strike, as it is a tribunal of “review, not of first view,” in the justices’ own words. Paradoxically perhaps, given that they are judges, their mandate is to decide as little as possible and only when lower courts can’t resolve a matter.
Sooner or later, though, this unusual situation makes it likely that the high court will have to address the question of whether Whitaker’s appointment is valid.