Case 1:18-cv-02849-ELH Document 24 Filed 11/26/18 Page 1 of 22

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Baltimore Division
THE STATE OF MARYLAND,
Plaintiff,
v.

Civil Action No. 1:18-cv-02849-ELH

UNITED STATES DEPARTMENT OF
JUSTICE, et al.,
Defendants.
BRIEF OF THE DISTRICT OF COLUMBIA, THE COMMONWEALTH OF
PENNSYLVANIA, AND THE STATES OF CONNECTICUT, DELAWARE, HAWAII,
ILLINOIS, MAINE, MASSACHUSETTS, NEW MEXICO, NEW YORK, NORTH
CAROLINA, OREGON, RHODE ISLAND, VIRGINIA, AND WASHINGTON AS AMICI
CURIAE SUPPORTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION,
TO SUBSTITUTE DEFENDANT, AND TO EXPEDITE CONSIDERATION

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TABLE OF CONTENTS
STATEMENT OF INTEREST OF AMICI CURIAE ..................................................................... 1
ARGUMENT .................................................................................................................................. 2
I.

II.

THE STATES HAVE A SIGNIFICANT INTEREST IN THE
LEGITIMACY OF THE ACTING ATTORNEY GENERAL. ............................. 2
A.

The Attorney General Enjoys Vast Authority That Has Major
Implications For The States. ....................................................................... 2

B.

Questions About The Legitimacy Of The Acting Attorney General
Undermine The States’ Ability To Protect Their Residents. ...................... 6

CONGRESS HAS PROTECTED THE SENATE’S CONFIRMATION
POWER BY SPECIFYING THAT THE DEPUTY ATTORNEY GENERAL
ACTS AS THE ATTORNEY GENERAL IN THE EVENT OF A
VACANCY. ............................................................................................................ 7
A.

Congress’s Selection Of A Specific Order Of Succession For The
Justice Department Controls Over The More General Provisions Of
The Vacancies Reform Act. ........................................................................ 7

B.

OLC’s Interpretation Would Impermissibly Restrict The Senate’s
Confirmation Power Without Clear Congressional Approval. ................. 11

CONCLUSION ............................................................................................................................. 15

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TABLE OF AUTHORITIES
Cases
Burns v. United States, 501 U.S. 129 (1991) .................................................................................. 9
Chicago v. Sessions, No. 1:17-cv-05720 (N.D. Ill. filed Aug. 7, 2017) ......................................... 3
Freytag v. Commissioner, 501 U.S. 868 (1991) ........................................................................... 11
NLRB v. SW Gen., Inc., 137 S. Ct. 929 (2017) ....................................................................... 11, 13
Owner-Operator Indep. Drivers Ass’n v. U.S. Dep’t of Transp., 724 F.3d 230 (D.C. Cir.
2013) ............................................................................................................................................. 12
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639 (2012) ............................ 9, 10
Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976) ............................................................ 10
Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No. 18-15068, 2018 WL
5833232 (9th Cir. Nov. 8, 2018) ..................................................................................................... 4
United States v. California, No. 2:18-01539 (E.D. Cal. filed Sept. 30, 2018) ............................... 5
United States v. Haning, No. 18-cr-139 (E.D. Mo. Nov. 13, 2018) ............................................... 6
United States v. Under Seal, 709 F.3d 257 (4th Cir. 2013) .......................................................... 10
Washington v. United States, No. 3:18-cv-1979 (S.D. Cal. filed June 26, 2018) ........................... 5
Whitman v. Am. Trucking Ass’n, 531 U.S. 457 (2001) ................................................................. 11
Constitution and Statutes
U.S. Const. art. II, § 2, cl. 2 .......................................................................................................... 11
5 U.S.C. § 3345 ............................................................................................................. 9, 10, 12, 14
5 U.S.C. § 3347 ......................................................................................................................... 8, 14
18 U.S.C. § 2510 ............................................................................................................................. 4
28 U.S.C. § 508 ............................................................................................................. 8, 10, 13, 14
28 U.S.C. § 509 ............................................................................................................................... 2
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28 U.S.C. § 519 ............................................................................................................................... 2
Act of July 20, 1870, ch. 150, 16 Stat. 162 ................................................................................. 2, 7
Act of July 23, 1868, ch. 227, 15 Stat. 168 ..................................................................................... 7
Act of June 20, 1874, ch. 333, 18 Stat. 113 .................................................................................... 8
Judiciary Act of 1789, ch. 20, 1 Stat. 73 ......................................................................................... 2
Presidential Transitions Effectiveness Act, Pub. L. No. 100-398, 102 Stat. 985 (1988).............. 13
Pub. L. No. 89-554, 80 Stat. 378 (1966) ......................................................................................... 8
Rev. Stat. § 179 (1st ed. 1875) ........................................................................................................ 8
Other Authorities
Authority of the President to Name an Acting Attorney General, 31 O.L.C. 208 (2007) ............ 15
Brad Heath, As Feds Focused on Detaining Kids, Border Drug Prosecutions Plummeted,
USA Today (Oct. 10, 2018) ............................................................................................................ 6
Fed. R. Crim. P. 6 ........................................................................................................................... 4
M. Carey, Cong. Research Serv., Presidential Appointments, the Senate’s Confirmation
Process, and Changes Made in the 112th Congress (2012) ......................................................... 10
M. Rosenberg, Cong. Research Serv., The New Vacancies Act: Congress Acts to Protect the
Senate’s Confirmation Prerogative (1998)................................................................................... 13
Memorandum from Counsel to the President Regarding Agency Reporting Requirements
under the Vacancies Reform Act (Mar. 21, 2001) ........................................................................ 14
Office of Legal Counsel, Dep't of Justice, Memorandum on Designating an Acting Attorney
General (Nov. 14, 2018) ................................................................................................. 8, 9, 12, 14
Press Release, Dep’t of Justice, Justice Department Demands Documents and Threatens To
Subpoena 23 Jurisdictions As Part of 8 U.S.C. 1373 Compliance Review (Jan. 24, 2018) ........... 5
Press Release, Dep’t of Justice, Statement by Attorney General Sessions on Today’s New
Lawsuit Against the State of California (Apr. 2, 2018) .................................................................. 5
Sari Horwitz & Maria Sacchetti, Sessions Vows To Prosecute All Illegal Border Crossers
and Separate Children from Their Parents, Wash. Post (May 7, 2018) ........................................ 5
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The Federalist No. 76 (A. Hamilton) (C. Rossiter ed. 1961) ........................................................ 11
U.S. Dep’t of Justice, FY 2018 Budget Request At A Glance ......................................................... 2
 

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STATEMENT OF INTEREST OF AMICI CURIAE
Amici curiae the District of Columbia, the Commonwealth of Pennsylvania and the States of
Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, New Mexico, New York, North
Carolina, Oregon, Rhode Island, Virginia, and Washington (the “Amici States”) support Plaintiff
State of Maryland’s request to enjoin Matthew Whitaker from exercising the authority of the United
States Attorney General and to substitute Deputy Attorney General Rod Rosenstein as a defendant.
The Attorney General makes many decisions fundamentally affecting the lives of Amici States’
residents. Additionally, the Amici States work closely with the Department of Justice every day,
coordinating law enforcement activities and administering hundreds of millions of dollars in grant
programs. They thus have a compelling interest in the Department’s ability to effectively carry out
its statutory responsibilities consistent with the rule of law. Unfortunately, the legal controversy
surrounding Mr. Whitaker’s appointment has threatened the legitimacy of the Department’s actions
and the vital relationships between the Department and the States. The Amici States therefore have
an urgent interest in the resolution of this issue, so that no doubts surround the legitimacy and
authority of the United States Attorney General and the United States Department of Justice.
The Amici States have concluded that Mr. Whitaker’s appointment is unlawful. At
minimum, it violates Congress’s express and controlling statutory designation of the Deputy
Attorney General as the Acting Attorney General in the event of a vacancy. This unlawful
appointment requires immediate correction to prevent harm to the Amici States caused by the actions
of an improperly designated Attorney General whose decisions are subject to possible invalidation.

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ARGUMENT
I.

THE STATES HAVE A SIGNIFICANT INTEREST IN THE LEGITIMACY OF THE
ACTING ATTORNEY GENERAL.
A.

The Attorney General Enjoys Vast Authority That Has Major Implications For
The States.

The Office of the Attorney General occupies a critical and unique position within the
Executive Branch. It was one of four original cabinet positions created in 1789, predating the
Department of Justice itself by more than 80 years. See Judiciary Act of 1789, ch. 20, 1 Stat. 73; see
also Act of July 20, 1870, ch. 150, 16 Stat. 162. The Attorney General has near-total authority over
the Department’s operations, as virtually “[a]ll functions of other officers of the Department of
Justice and all functions of agencies and employees of the Department of Justice are vested in the
Attorney General.” 28 U.S.C. § 509. The Attorney General oversees a vast array of law
enforcement organizations, including the Federal Bureau of Investigation, the Drug Enforcement
Administration, the Bureau of Prisons, the U.S. Marshals Service, and all 94 U.S. Attorney’s
Offices, among many other offices and agencies. In total, more than 100,000 employees work under
the Attorney General as law enforcement agents, attorneys, and in a variety of other capacities. See
U.S. Dep’t of Justice, FY 2018 Budget Request At A Glance, https://www.justice.gov/jmd/page/file/
968216/download.
Exercising the tremendous authority of the office, the Attorney General is responsible for
“supervis[ing] all litigation to which the United States, an agency, or officer thereof is a party.” 28
U.S.C. § 519. As a result, he or she ultimately determines the positions taken in court by the
Executive Branch. These decisions have profound consequences for the Amici States and their
residents. The present lawsuit, for example, arose from the decision of former Attorney General
Sessions not to defend certain provisions of the Affordable Care Act in court. See Md. Mot. for
Prelim. Inj., Mem., Dkt. 6-1, at 2 (Nov. 13, 2018). That decision could have devastating
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consequences for the millions of Americans with preexisting medical conditions. On many other
significant issues—ranging from the protection of undocumented immigrants who arrived in this
nation as children, to the legality of removing voters from the rolls for not voting, to discrimination
against transgender individuals—the former Attorney General reversed the Department’s earlier
position.
The Attorney General makes decisions that directly affect the Amici States’ own law
enforcement efforts. For instance, state and local law enforcement agencies depend on Justice
Department funding to accomplish their missions. The Justice Department oversees numerous grant
programs that provide hundreds of millions of dollars to states and local governments each year.
Funding through the Byrne Justice Assistance Grant program and Community Oriented Policing
Services provides essential support for state and local law enforcement agencies. Other grant
programs, such as the Justice Reinvestment Initiative and the Byrne Criminal Justice Innovation
Program, support state and local initiatives to develop data-driven approaches to criminal justice
reform and crime prevention. The decisions made by the Attorney General in administering these
programs can result in loss of that crucial funding. For example, former Attorney General Sessions
sought to withhold federal grant funding from jurisdictions that, in his view, did not cooperate
sufficiently with federal immigration enforcement agencies. See, e.g., Chicago v. Sessions, No.
1:17-cv-05720 (N.D. Ill. filed Aug. 7, 2017) .
In addition, the Amici States regularly collaborate with the Justice Department, with state law
enforcement agents relying every day on the Department’s authority. State narcotics officers jointly
investigate cases with agents of the Drug Enforcement Administration. Assistant U.S. Attorneys and
their state counterparts work hand-in-hand to bring down criminal organizations. State and federal
agencies jointly investigate violations of the antitrust statutes and other consumer protection laws.

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Law enforcement efforts are often intertwined: federal and state agents assist each other in executing
search warrants and share evidence for use in prosecuting offenders, whether in federal or state
court. Federal criminal statutes recognize that state officials will play a significant role in enforcing
federal criminal laws. For example, the federal wiretap statute specifically authorizes state law
enforcement officials to submit affidavits in support of applications for electronic surveillance. 18
U.S.C. § 2510. And the Federal Rules of Criminal Procedure specifically permit the sharing of
federal grand jury information with certain state officials, reflecting the recognition that state officers
are often involved in the investigation of federal crimes. Fed. R. Crim. P. 6(e)(3)(A)(ii). The
Attorney General ultimately sets the policies that guide such law enforcement collaboration.
While the Amici States and the Justice Department frequently collaborate, they are also often
adversaries in litigation.

State attorneys general have filed numerous lawsuits against this

Administration and its predecessors. Some of the recent litigation between States and the federal
government resulted from decisions made by former Attorney General Sessions himself. See, e.g.,
Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No. 18-15068, 2018 WL 5833232 (9th
Cir. Nov. 8, 2018) (the rescission of Deferred Action for Childhood Arrivals). Decisions made by
the Acting Attorney General about these cases and other matters will have a direct and significant
impact on the Amici States and their residents. The Acting Attorney General could continue on the
path set by former Attorney General Sessions. Alternatively, he could withdraw or modify some of
the policies that have spurred litigation with the States and work to ensure that the Department more
faithfully complies with the law going forward—thus potentially resolving current lawsuits with the
Amici States and reducing the likelihood of future ones.
In addition, under former Attorney General Sessions, the Department focused its resources
on pursuing litigation against “states like California that believe they are above the law.” Press

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Release, Dep’t of Justice, Statement by Attorney General Sessions on Today’s New Lawsuit Against
the State of California (Apr. 2, 2018).

It also sought declarations that state laws were

unconstitutional, e.g., United States v. California, No. 2:18-01539 (E.D. Cal. filed Sept. 30, 2018)
(the California Internet Consumer Protection and Net Neutrality Act of 2018), and threatened other
legal actions against states, e.g., Press Release, Dep’t of Justice, Justice Department Demands
Documents and Threatens To Subpoena 23 Jurisdictions As Part of 8 U.S.C. 1373 Compliance
Review (Jan. 24, 2018), https://tinyurl.com/ybzcvmyo. The Department under past attorneys general
sued states for violations of federal civil rights laws, including the Voting Rights Act, the Religious
Land Use and Institutionalized Persons Act, Title VII of the Civil Rights Act of 1964, and the
Americans with Disabilities Act. The Department’s priorities, shaped by the Attorney General, thus
have a tremendous impact on the Amici States.
The impact of the Attorney General’s ability to set the Justice Department’s overall mission
and focus its resources cannot be overstated. For instance, former Attorney General Sessions chose
to devote considerable resources to the prosecution of immigration offenses, including misdemeanor
illegal entry, vowing to bring “as many of those cases as humanly possible until we get to
100 percent.” Sari Horwitz & Maria Sacchetti, Sessions Vows To Prosecute All Illegal Border
Crossers and Separate Children from Their Parents, Wash. Post (May 7, 2018), https://tinyurl.com/
ya746seu. The Department’s “zero-tolerance” policy for immigration offenses drained resources
from other enforcement activities and led to the separation of thousands of children from their
parents, imposing costs on the states where these children and their families ultimately reside. See
Compl., Dkt. No. 1, ¶¶ 164-341, Washington v. United States, No. 3:18-cv-1979 (S.D. Cal. filed
June 26, 2018). This focus on immigration prosecutions resulted in drug trafficking prosecutions
along the border reaching their lowest level in years. See Brad Heath, As Feds Focused on

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Detaining Kids, Border Drug Prosecutions Plummeted, USA Today (Oct. 10, 2018),
https://tinyurl.com/y6uvst9m.
B.

Questions About The Legitimacy Of The Acting Attorney General Undermine
The States’ Ability To Protect Their Residents.

The relationship between the Justice Department and the States is so essential—whether it is
collaborative or adversarial—that any doubts about the legitimacy of the Acting Attorney General
threaten to harm the Amici States. That is why the identity of the legitimate Acting Attorney General
must be resolved as soon as possible. To allow doubts about the legality of Mr. Whitaker’s
appointment to linger is to invite legal challenges to both significant and routine actions undertaken
by the Department while he is serving as Acting Attorney General. See, e.g., Mot. to Dismiss
Indictment, or in the Alternative, to Disqualify Prosecution Team, Dkt. No. 72, United States v.
Haning, No. 18-cr-139 (E.D. Mo. Nov. 13, 2018) (citing Mr. Whitaker’s appointment).
Regardless of how these legal challenges are ultimately resolved, the fact that Mr. Whitaker’s
appointment has exposed the Department to such challenges creates grave risks for the States. Every
day, States make decisions in response to the Department’s actions. They choose how to allocate
litigation resources in reaction to the Justice Department’s actions. They weigh whether and how to
fund crucial programs based on the availability or lack of key Justice Department funds. They rely
on federal warrants and investigative resources in making prosecutorial decisions, in some cases
choosing to forego state charges for serious crimes in favor of federal prosecution. And they
respond to changes in Justice Department enforcement priorities in areas such as civil rights and
consumer protection by refocusing their own resources to ensure that their residents are protected.
In all these respects, the Amici States depend on the legitimacy of the authority overseeing
the Department. To create even the slightest risk that such authority is invalid poses real harm to the
Amici States, warranting immediate resolution of the questions raised by Maryland’s motion.
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II.

CONGRESS HAS PROTECTED THE SENATE’S CONFIRMATION POWER BY
SPECIFYING THAT THE DEPUTY ATTORNEY GENERAL ACTS AS THE
ATTORNEY GENERAL IN THE EVENT OF A VACANCY.
Since Congress first established the Justice Department a century and a half ago, it has

specified the officer to temporarily fill an Attorney General vacancy. It has done so through a
specific succession statute, rather than general vacancies acts. The purported appointment of Mr.
Whitaker—rather than the Deputy Attorney General as the current succession statute requires—
contravenes Congress’s intent. The general provisions of the 1998 Vacancies Reform Act do not
support Mr. Whitaker’s appointment and, as a matter of basic statutory interpretation, cannot control
over the office-specific statute directing that the Deputy Attorney General succeed the Attorney
General. Moreover, if the Vacancies Reform Act were treated as an alternative method of
succession that can supplant Congress’s specific legislative selection, it would allow the President
essentially free choice of an acting Attorney General, even one who occupies a position, as here, that
is not Senate-confirmed. At minimum, such a significant relinquishment of the Senate’s advice and
consent power on so consequential an appointment should not be inferred without a clear indication
from Congress, which is entirely absent here. Nothing less would suffice to protect the Senate’s
advice and consent power, an essential safeguard of liberty in our constitutional scheme.
A.

Congress’s Selection Of A Specific Order Of Succession For The Justice
Department Controls Over The More General Provisions Of The Vacancies
Reform Act.

Since the Justice Department’s founding, Congress has directly provided in its enabling
statute for temporarily filling an Attorney General vacancy. In 1870, when creating the Department
with the Attorney General as its head, Congress specified an officer (the Solicitor General) to
temporarily act as Attorney General. Act of July 20, 1870, ch. 150, § 2, 16 Stat. at 162. It did so
even though just two years prior it had enacted a Vacancies Act, generally addressing vacancies in
the executive departments. Act of July 23, 1868, ch. 227, 15 Stat. 168. When Congress codified all
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existing statutes in 1874, the Attorney General was expressly exempted from the general Vacancies
Act. Rev. Stat. § 179 (1st ed. 1875); see Act of June 20, 1874, ch. 333, § 2, 18 Stat. 113, 113. In
1966, Congress re-codified the Attorney General succession statute and the Vacancies Act, with the
latter still expressly inapplicable to the Attorney General. Pub. L. No. 89-554, 80 Stat. 378, 426
(1966) (5 U.S.C. § 3347). In its current form (unchanged since 1977), the Attorney General
succession statute, 28 U.S.C. § 508, provides that the Deputy Attorney General is first in line of
succession, followed by the Associate Attorney General.
The Vacancies Reform Act, passed in 1998, did not abrogate the Attorney General
succession statute or this longstanding precedent. Far from repealing the Attorney General
succession statute, the Vacancies Reform Act establishes itself as “the exclusive means for
temporarily authorizing an acting official” to fill an executive agency office requiring Presidential
appointment and Senate confirmation, unless “a statutory provision expressly . . . designates an
officer or employee to perform the functions and duties of a specified office temporarily in an acting
capacity.” 5 U.S.C. § 3347(a)(1)(B). Because the Attorney General succession statute is such an
express statutory designation, it continues to apply unaffected by the Vacancies Reform Act.
Disregarding this plain text, the U.S. Department of Justice Office of Legal Counsel (“OLC”)
erroneously advised that the President could appoint Mr. Whitaker using the Vacancies Reform Act.
Memorandum on Designating an Acting Attorney General (Nov. 14, 2018) (“OLC memo”). The
OLC memo incorrectly opines that, even if the Vacancies Reform Act is not the “exclusive means”
to fill such a vacancy, it is still an alternative means. OLC Memo 4. The act says no such thing. If
Congress had intended that the Vacancies Reform Act operate as an alternative mechanism, it would
have said so. It would also have further addressed when and how this alternative procedure would
operate, given the unanswered questions it would create. For example, if a succession occurs

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automatically under both the office-specific succession statute and the Vacancies Reform Act, 5
U.S.C. § 3345(a)(1), do the latter act’s time limitations and other restrictions apply? Can the two
alternative mechanisms be piggybacked, thus allowing successive temporary appointments for the
same vacancy? The answers would only raise further questions, such as whether the President must
choose which alternative mechanism applies, and how and when such choice may be made.
The Vacancies Reform Act’s silence indicates that the OLC’s strained interpretation is
incorrect. To be sure, the Vacancies Reform Act also lacks an express statement that it is not an
alternative mechanism. See OLC Memo 4 (relying on the fact that the Vacancies Reform Act
“nowhere says that if another statute remains in effect, the Vacancies Reform may not be used”).
But there would have been no necessity, or reason, to say this. Since those office-specific statutes
unquestionably remain in effect, they still govern. See Burns v. United States, 501 U.S. 129, 136
(1991) (“An inference drawn from congressional silence certainly cannot be credited when it is
contrary to all other textual and contextual evidence of congressional intent.”) The OLC memo’s
theory—that Congress would deliberately establish two conflicting methods of succession without
giving any thought or guidance to how they would interact—is novel and exceedingly strange. It is
unsurprising that the drafters of the Vacancies Reform Act did not anticipate OLC’s interpretation
and take pains to expressly refute it.
The Vacancies Reform Act should not be interpreted to create a conflict with the Attorney
General succession statute, which has always controlled over general vacancies acts. Even if there
were a seeming conflict, the Attorney General succession statute continues to apply as the specific
choice of Congress for temporarily filling an Attorney General vacancy. It is “a commonplace of
statutory construction that the specific governs the general.” RadLAX Gateway Hotel, LLC v.
Amalgamated Bank, 566 U.S. 639, 645 (2012). Under this basic principle, “a statute dealing with a

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narrow, precise, and specific subject is not submerged by a later enacted statute covering a more
generalized spectrum.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976). In other
words, “a subsequent statute . . . treating the subject in a general manner, and not expressly
contradicting the original act, shall not be considered as intended to affect the more particular or
positive previous provisions, unless it is absolutely necessary to give the latter act such a
construction, in order that its words shall have any meaning at all.” Id.; accord United States v.
Under Seal, 709 F.3d 257, 262 (4th Cir. 2013) (where statutes conflict, “a specific statute closely
applicable to the substance of the controversy at hand controls over a more generalized provision”).
This well-established canon of construction best reconciles the statutes here and effectuates
Congress’s intent. The Vacancies Reform Act is the general, default statute for the roughly 1,200
executive offices subject to Presidential appointment and Senate confirmation. 5 U.S.C. § 3345; see
M. Carey, Cong. Research Serv., Presidential Appointments, the Senate’s Confirmation Process, and
Changes Made in the 112th Congress 7 (2012). In contrast, the Attorney General succession statute
deals only with one office: the Attorney General. Its terms plainly direct that the Deputy Attorney
General is the Acting Attorney General. 28 U.S.C. § 508(a). The general provisions of the
Vacancies Reform Act do not expressly contradict the Attorney General succession statute, nor is it
absolutely necessary that those provisions do so, for they still apply to the vast majority of Senateconfirmed offices. Given the importance of the Attorney General position, it is only natural that
Congress has long used a specific provision, rather than relying on a general act, to govern a vacancy
in that office. The Vacancies Reform Act thus does not submerge, and nullify, Congress’s specific
command applicable to this very position. See RadLAX, 566 U.S. at 645 (“To eliminate the
contradiction, the specific provision is construed as an exception to the general one.”).

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B.

OLC’s Interpretation Would Impermissibly Restrict The Senate’s Confirmation
Power Without Clear Congressional Approval.

OLC also fails to show any clear intent of Congress to diminish the Senate’s constitutional
role over such a key appointment as the Attorney General. The OLC memo contends that the
Vacancies Reform Act abrogated a longstanding statute and unbroken tradition under which
Congress specified the Senate-confirmed office whose occupant would serve as Acting Attorney
General in the event of a vacancy. But courts do not interpret legislation to enact such a fundamental
legal change without a clear indication of Congress’s intent. Whitman v. Am. Trucking Ass’n, 531
U.S. 457, 468 (2001). In other words, Congress does not “hide elephants in mouseholes.” Id. This
principle of statutory construction applies with special force here, for this is no ordinary elephant.
At issue is not Congress’s routine implementation of legislation through a regulatory framework.
See, e.g., id. Instead, at stake is the Senate’s advice and consent power: a “critical structural
safeguard of the constitutional scheme.” NLRB v. SW Gen., Inc., 137 S. Ct. 929, 935 (2017)
(internal quotation marks omitted); see U.S. Const. art. II, § 2, cl. 2.
This Court should presume that Congress did not intend to weaken this critical constitutional
protection. “The manipulation of official appointments had long been one of the American
revolutionary generation’s greatest grievances against executive power because the power of
appointment to offices was deemed the most insidious and powerful weapon of eighteenth century
despotism.” Freytag v. Commissioner, 501 U.S. 868, 883 (1991) (citation and internal quotation
marks omitted). To check this executive power, the Framers “empowered the Senate to confirm
principal officers on the view that ‘the necessity of its co-operation in the business of appointments
will be a considerable and salutary restraint upon the conduct of’ the President.” SW Gen., 137 S.
Ct. at 948 (quoting The Federalist No. 76, at 514 (A. Hamilton) (C. Rossiter ed. 1961)). As the
Framers envisioned, the Senate’s confirmation power provides “‘an excellent check upon a spirit of
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favoritism in the President’ and a guard against ‘the appointment of unfit characters.’” Id. at 935
(quoting The Federalist No. 76, at 457). This power is integral to the balanced separation of powers,
which the Framers understood as essential to the preservation of liberty. Id. at 948.
Moreover, the Senate’s advice and consent power is easy to cede, but hard to restore.
Passing an act giving the President broad discretion in filling vacancies requires only a simple
majority of Congress. But once enacted, such legislation likely cannot be changed without a vetoproof supermajority. A president bestowed with such broad authority would naturally resist a
legislative repeal. Courts should therefore ensure that, at minimum, Congress has spoken clearly
before legislation is construed to shift the balance of power from Congress to the President (even
assuming that Congress can constitutionally do so). See Owner-Operator Indep. Drivers Ass’n v.
U.S. Dep’t of Transp., 724 F.3d 230, 236 (D.C. Cir. 2013) (requiring clear statements for “statutes
that significantly alter the balance between Congress and the President”).
The requisite clear intent of Congress is absent here. The OLC memo acknowledges that, for
more than a century, Congress specified the Senate-confirmed office whose occupant would act
temporarily as the Attorney General. OLC Memo 13. But OLC claims that Congress inexplicably
changed course, abrogated the statute, and gave the President a choice from over a thousand
individuals to unilaterally appoint, including those whom the Senate had never confirmed for their
positions. Id. at 4-5; see 5 U.S.C. § 3345(a)(2), (3). As here, this would mean that the President can
place a mere employee in charge of scores of Senate-confirmed Justice Department officers,
including all 94 U.S. Attorneys. OLC identifies scant evidence that this dramatic turnabout is what
Congress in fact intended. It relies on a single, vague sentence in a Senate report on a version of a
bill that was not enacted. OLC Memo 4. It then cites an obsolete reference in the Attorney General
succession statute to the former Vacancies Act, inaccurately describing it as a reference to the

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 Case 1:18-cv-02849-ELH Document 24 Filed 11/26/18 Page 18 of 22

Vacancies Reform Act (which did not even exist at the time). Id. at 5; see 28 U.S.C. § 508 (1994).
Finally, OLC notes that the Attorney General succession statute uses the term “may”—without
noting that it also uses “shall”—before OLC claims that using “shall” would have made no
difference anyway. OLC Memo 5 & n.4; see 28 U.S.C. § 508. Mouseholes, at best.
Contrary to OLC’s suggestion that the Vacancies Reform Act significantly relinquished the
Senate’s confirmation power, Congress enacted it to protect this power against ongoing executive
encroachment. SW Gen., 137 S. Ct. at 935-36. During the 1970s and 1980s, Congress opposed
claims of executive departments that the Vacancies Act was inapplicable if the agency’s “authorizing
legislation vests all powers and functions of the agency in its head and allows the head to delegate
such powers and functions to subordinates in her discretion.” M. Rosenberg, Cong. Research Serv.,
The New Vacancies Act: Congress Acts to Protect the Senate’s Confirmation Prerogative 1 (1998),
https://www.everycrsreport.com/reports/98-892.html. Such interpretation would have significantly
curtailed the Vacancies Act, since all executive departments had such broad delegation provisions.
See id. Even though Congress amended the Vacancies Act to reject such an interpretation, executive
departments still adhered to it based upon a subsequent OLC opinion that ignored Congress’s stated
intent. Id. at 3; see Presidential Transitions Effectiveness Act, Pub. L. No. 100-398, §7, 102 Stat.
985, 988 (1988). By 1998, about 20 percent of offices subject to Senate confirmation in those
departments had temporary designees, most of whom were acting beyond the act’s time limits.
Rosenberg, supra at 1, 3-4. “Perceiving a threat to the Senate’s advice and consent power,”
Congress “acted again” and replaced the Vacancies Act with the Vacancies Reform Act. SW Gen,
137 S. Ct. at 936.
OLC’s interpretation disregards this history and statutory purpose. In OLC’s view, for
offices with their own succession statutes, the Vacancies Reform Act served only to expand the

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President’s authority at the expense of the Senate’s advice and consent power. As OLC has advised,
the President is now free to disregard Congress’s selections of specific officers to temporarily fill
vacancies in the most important offices, including Attorney General. According to OLC, the
succession order for an Attorney General vacancy is no longer what Congress specifically provided:
the Deputy Attorney General, followed by the Associate Attorney General. 28 U.S.C. § 508.
Instead, the President can select an Acting Attorney General from any of 1,200 Senate-confirmed
positions throughout government or, as here, from various non-Senate-confirmed positions within
the Department of Justice. See OLC Memo 4-5 (citing 5 U.S.C. § 3345(a)(2), (3)). This cannot be.
OLC erroneously interprets the Vacancies Reform Act to allow the President to virtually hand-pick
an Acting Attorney General without any Senate oversight, when the act’s purpose was the opposite:
to reassert and protect the Senate’s constitutional authority over such appointments.
Any notion of clear legislative intent supporting OLC’s interpretation is refuted by the
contemporary application of the Vacancies Reform Act. Shortly after its enactment, the Counsel to
the President issued a memorandum to all federal executive departments and agencies, advising that
the act does not apply to positions, including the Attorney General, governed by office-specific
succession statutes. Memorandum from Counsel to the President Regarding Agency Reporting
Requirements under the Vacancies Reform Act 1-2 (Mar. 21, 2001) (“2001 Memo”). The
memorandum explained that “positions for which another statute designates who shall serve as an
acting officer” are exempt from the Vacancies Reform Act’s coverage. Id. at 2; accord 5 U.S.C.
§ 3347(a)(1)(B). It specifically stated that the position of Attorney General was exempt “because 28
U.S.C. § 508 governs who shall act as Attorney General in the case of a vacancy.” 2001 Memo 2
n.2. Although OLC later sought to minimize the 2001 memorandum as addressing only the
Vacancies Reform Act’s reporting requirements, see Authority of the President to Name an Acting

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 Case 1:18-cv-02849-ELH Document 24 Filed 11/26/18 Page 20 of 22

Attorney General, 31 O.L.C. 208, 210 (2007), the 2001 memorandum addressed, necessarily, what
positions the Vacancies Reform Act covered in order to ascertain what positions were covered by
any of its provisions. OLC cannot overcome this contradiction. Congress could not have clearly
enacted the fundamental change that OLC posits and yet, at the same time, acted so surreptitiously
that the executive branch was totally unaware of it.
The President’s appointment of Mr. Whitaker is fraught with constitutional doubts. That the
Senate never confirmed him for his permanent position raises a separate constitutional concern that
he cannot temporarily act as Attorney General even with legislative approval, at least absent an
exigency not present here. See Md. Mot. for Prelim. Inj., Mem. 22-27. The canon of constitutional
avoidance dictates that the Vacancies Reform Act should not be interpreted in such a constitutionally
suspect manner. But even setting that concern aside, there must still be clear indication that
Congress did in fact authorize succession of someone in Mr. Whitaker’s position to Acting Attorney
General. That clear intent remains necessary to protect the critical constitutional safeguard of the
Senate’s advice and consent power. Requiring a clear intent ensures that Congress has acted
deliberately and unmistakably—without possibility for misinterpretation—before it is found to have
significantly transferred its constitutional authority over key appointments to the President (even
assuming that it has such authority).
Because the Vacancies Reform Act does not reflect such an intent clearly, this Court should
recognize and enforce Congress’s express direction in the Attorney General succession statute that
the Deputy Attorney General is the Acting Attorney General.
CONCLUSION
This Court should grant the State of Maryland’s motion for a preliminary injunction and
motion to substitute.

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Respectfully submitted,
JOSH SHAPIRO
Attorney General
Commonwealth of Pennsylvania

KARL A. RACINE
Attorney General
District of Columbia

MICHAEL J. FISCHER
Chief Deputy Attorney General

LOREN L. ALIKHAN
Solicitor General

AIMEE D. THOMSON
Deputy Attorney General

CAROLINE S. VAN ZILE
Deputy Solicitor General

Office of Attorney General
Strawberry Square
Harrisburg, PA 17120
(215) 560-2171
mfischer@attorneygeneral.gov

CARL J. SCHIFFERLE
Senior Assistant Attorney General
Office of the Solicitor General

GEORGE JEPSEN
Attorney General
State of Connecticut
55 Elm Street
Hartford, CT 06106

MATTHEW P. DENN
Attorney General
State of Delaware
Department of Justice
Carvel State Building, 6th Floor
820 North French Street
Wilmington, DE 19801

RUSSELL A. SUZUKI
Attorney General
State of Hawaii
425 Queen Street
Honolulu, HI 96813

LISA MADIGAN
Attorney General
State of Illinois
100 West Randolph Street
12th Floor
Chicago, IL 60601

JANET T. MILLS
Attorney General
State of Maine
6 State House Station
Augusta, ME 04333-0006

MAURA HEALEY
Attorney General
Commonwealth of Massachusetts
One Ashburton Place
Boston, MA 02108

/s/ Valerie M. Nannery______
VALERIE M. NANNERY
Assistant Attorney General
Bar No. 20441
441 4th Street NW, Suite 630 South
Washington, D.C. 20001
(202) 442-9596 (phone)
(202) 730-1465 (fax)
valerie.nannery@dc.gov

 Case 1:18-cv-02849-ELH Document 24 Filed 11/26/18 Page 22 of 22

HECTOR BALDERAS
Attorney General
State of New Mexico
408 Galisteo Street
Santa Fe, NM 87501

BARBARA D. UNDERWOOD
Attorney General
State of New York
28 Liberty Street
New York, NY 10005

JOSHUA H. STEIN
Attorney General
State of North Carolina
North Carolina Department of Justice
114 West Edenton Street
Raleigh, NC 27603

ELLEN F. ROSENBLUM
Attorney General
State of Oregon
1162 Court Street NE
Salem, OR 97301

PETER F. KILMARTIN
Attorney General
State of Rhode Island
150 South Main Street
Providence, RI 02903

MARK R. HERRING
Attorney General
Commonwealth of Virginia
202 North Ninth Street
Richmond, VA 23219

ROBERT W. FERGUSON
Attorney General
State of Washington
P.O. Box 40100
Olympia, WA 98504-0100