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The Acting Attorney-General Problem

November 16th, 2018 Leave a comment Go to comments

“There are only two reasonable positions for someone who believes the Vacancy Act is unconstitutional.
The first is that every department has some line of succession, and whoever is at the top of it becomes acting attorney-general. The President then has to fire everyone in the line until he gets down to the level where he can appoint someone to an office without Senate consent.
The second is that the President himself becomes the acting attorney-general.”

A current question of the day is whether the Vacancies Act is constitutional, and the President can appoint someone who has worked at the Justice Department for 90 days to be acting attorney-general for 210 days. This is in question because such an acting attorney-general would not have been confirmed by the Senate, and the  Constitution says the President

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the 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.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

If this part of the Constitution bars people like Whitaker, what happens when there is a vacancy at the top of the Justice Department?

Some people say that the President could appoint someone who has been confirmed to the Senate for some other position such as Deputy Attorney General or Ambassador to Libya. That is absurd. Senate confirmation for one job does not transfer to another. In any case, that would cause big trouble when the job in question is not for Attorney-General, but for U.S. Attorney for the Western District of Arkansas. That job has, I think, no Senate-confirmed underlings, so somebody would have to come in from outside or its operations would halt, and probably the Ambassador to Libya would be reluctant to take the job.

So there are only two reasonable positions for someone who believes the Vacancy Act is unconstitutional.

The first is that every department has some line of succession, and whoever is at the top of it becomes acting attorney-general.

The second is that the President himself becomes the acting attorney-general.

Under the first position, if the President wants, he cant fire everybody in the line of succession until he finds someone to his taste. What he could do is fire all the people in the line of succession who are senate-confirmed and then appoint someone to the highest job in the line of succession that doesn’t need senate confirmation— Chief Economist for the Antitrust Division or something like that. There must exist some office like that, since otherwise operations would cease if everybody above it died or was fired.

Under the second position, the President, as acting attorney-general, would hire an assistant and would, I think, rubber stamp almost all of the assistant’s decisions.

Note that neither of these seem likely to be what the Founders intended. Indeed, given the Recess Appointment clause, it sure looks to me like the Vacancy Act would be constitutional. It does exactly what the Recess Appointment clause does: allow the President to appoint someone to temporarily run the department. To be sure, one might say that this is evidence that when there is no recess, the Founders meant for the department to flounder without a head. I can’t make up my mind on that. Such floundering makes sense as a threat point for both President and Senate if they don’t find a suitable Attorney-General within, say, two weeks of a vacancy, rather like what happens when appropriations aren’t passed and we get a Government Shutdown, but just for one agency at a time.

All of this revolves around an even more interesting question: why is it useful for the President to be able to appoint a boss for an agency rather than running it directly?  Maybe I’ll ask economists here, since I’ve just arrived  in Cambridge, Mass. for the NBER Organizational Economics meeting.

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