Is the Appointment Constitutional?
The president’s decision to appoint a Department of Justice employee who is not Senate-confirmed to act as attorney general under the FVRA raises an esoteric but unresolved constitutional issue. The
Appointments Clause of the Constitution provides that the president can nominate and, “by and with the Advice and Consent of the Senate,” appoint officers of the United States. It further allows that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Consequently, while the clause permits Congress to authorize the appointment of “inferior officers” by the president alone or by the head of a department, it requires that any “principal officer” be appointed by and with the advice and consent of the Senate.
The attorney general—a Cabinet-level official who is the head of a major executive department and reports only to the president—is plainly a principal officer. The chief of staff to the attorney general, on the other hand, is an inferior officer appointed by the head of a department and not subject to the Senate’s advice and consent, so Whitaker has not been confirmed to his current position “by and with the advice and consent of the Senate.” While the FVRA allows the president to appoint another Senate-confirmed official to fill a vacancy, here the president has elected to rely on another FVRA provision that allows him to appoint a senior Department of Justice official who was not Senate-confirmed.
There remains an open question of whether it is constitutional to rely on the FVRA to appoint an official not serving in a Senate-confirmed position to act as a principal officer, such as the attorney general. Some—including Justice Clarence Thomas—
have argued that an acting principal officer must be appointed in conformance with the Appointments Clause [of the Constitution], i.e., by and with the advice and consent of the Senate: “Appointing principal officers under the FVRA ... raises grave constitutional concerns because the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate.”
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