UNITED STATES DEPARTMENT OF JUSTICE
OFFICE OF THE ATTORNEY GENERAL
_______________________________________

MATTER OF Daniel Girmai NEGUSIE,
Respondent.
_______________________________________

Referred from:
United States Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Interim Decision #3943
27 I&N Dec. 481 (A.G. 2018)
_______________________________________

BRIEF OF AMICI CURIAE THE AMERICAN IMMIGRATION
COUNCIL, ASISTA IMMIGRATION ASSISTANCE, HARVARD
IMMIGRATION AND REFUGEE CLINICAL PROGRAM, HER JUSTICE,
IMMIGRANT DEFENSE PROJECT, NORTHWEST IMMIGRANT
RIGHTS PROJECT, AND SOUTHERN POVERTY LAW CENTER ON
REFERRAL TO THE ATTORNEY GENERAL
_______________________________________

Robert N. Weiner
R. Stanton Jones
Kaitlin Konkel
Samuel F. Callahan*
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave. NW
Washington, DC 20001
(202) 942-5000
robert.weiner@arnoldporter.com
* Admitted outside the District of
Columbia; practicing law in D.C.
under the supervision of Firm
principals who are D.C. Bar members

Trina Realmuto
AMERICAN IMMIGRATION
COUNCIL
1318 Beacon Street, Suite 18
Brookline, MA 02446
(857) 305-3600
trealmuto@immcouncil.org
Karolina Walters
AMERICAN IMMIGRATION
COUNCIL
1331 G Street NW, Suite 200
Washington, DC 20005
(202) 507-7500
kwalters@immcouncil.org
Counsel for Amici Curiae

 TABLE OF CONTENTS
Page
INTRODUCTION ..................................................................................................... 1
SUMMARY OF ARGUMENT ................................................................................. 2
INTEREST OF AMICI CURIAE .............................................................................. 6
ARGUMENT ............................................................................................................. 9
I.

Mr. Whitaker’s Designation as Acting Attorney General Violates the
Plain Text of the Appointments Clause ........................................................... 9

II.

Mr. Whitaker’s Designation As Acting Attorney General Contravenes
the Plain Text of Both the AG Succession Law and the FVRA ................... 11

III.

The Justice Department’s Contrary Analysis Misinterprets the
Constitution, The AG Succession Law, and the FVRA ................................ 15
A.

B.

Eaton Does Not Excuse Mr. Whitaker’s Designation from the
Constraints of the Appointments Clause ............................................. 16
1.

Eaton Is Limited to Exigent Circumstances ............................. 16

2.

No Temporary or Special Conditions Excuse the
Violation of the Appointments Clause Here............................. 19

3.

In Contrast to the Consul in Eaton, the Attorney General
Is a Cabinet-Level Officer and One of the Most Powerful
Officials in the Federal Government ........................................ 21

Historical Practice Undermines the Validity of Mr. Whitaker’s
Designation as Acting Attorney General ............................................ 22
1.

The Earliest Provisions for Filling Vacancies Sought to
Adhere to the Appointments Clause Absent Exigent
Circumstances ........................................................................... 22

2.

Historical Practice from 1809–1860 Continued to Adhere
to the Appointments Clause Absent Exigent
Circumstances ........................................................................... 24
i

 3.
C.

Vacancy Statutes From 1868 Continued to Respect the
Requirements of the Appointments Clause .............................. 26

Whitaker’s Designation Improperly Nullifies the AG
Succession Law ................................................................................... 28
1.

Under the Structure of the Appointments Process, the AG
Succession Law Is Exclusive When There is a Vacancy
in the Office of the Attorney General ....................................... 29

2.

The Background of the FVRA and the AG Succession
Law Shows that the AG Succession Law is Exclusive ............ 32

CONCLUSION ........................................................................................................ 37

ii

 TABLE OF AUTHORITIES
Cases

Page(s)

Buckley v. Valeo,
424 U.S. 1 (1976) .............................................................................................. 2, 5
Dames & Moore v. Regan,
453 U.S. 654 (1981) ............................................................................................ 28
Duncan v. Walker,
533 U.S. 167 (2001) ............................................................................................ 28
Edmond v. United States,
520 U.S. 651 (1997) ..................................................................................2, 10, 22
In re Mirant Corp.,
378 F.3d 511 (5th Cir. 2004) .............................................................................. 32
Market Co. v. Hoffman,
101 U.S. 112 (1879) ............................................................................................ 28
Medellín v. Texas,
552 U.S. 491 (2008) ............................................................................................ 28
Morrison v. Olson,
487 U.S. 654 (1988) ............................................................................................ 22
Morton v. Mancari,
417 U.S. 535 (1974) ................................................................................13, 31, 32
NLRB v. Noel Canning,
134 S. Ct. 2550 (2014) ..................................................................................15, 28
NLRB v. SW General, Inc.,
137 S. Ct. 929 (2017) ..........................................................................3, 15, 20, 35
RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
566 U.S. 639 (2012) ......................................................................................14, 32
U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., Inc.,
508 U.S. 439 (1993) ............................................................................................ 33

iii

 Cases—Continued
United States v. Eaton,
169 U.S. 331 (1898) .....................................................................................passim
Whitman v. Am. Trucking Ass’n,
531 U.S. 457 (2001) ............................................................................................ 34
Williams v. Phillips,
482 F.2d 669 (D.C. Cir. 1973) ............................................................................ 17
Zadvydas v. Davis,
533 U.S. 678 (2001) ............................................................................................ 15
Constitutional Provisions
U.S. Const. art. II ....................................................................................................... 9
U.S. Const. art. II, § 2, cl. 2 ..............................................................................passim
U.S. Const. art. II, § 3 .......................................................................................... 4, 16
U.S. Const. amend. I .................................................................................................. 4
Statutes and Regulations
Federal Vacancies Reform Act of 1998, 5 U.S.C. §§ 3345–3349d ..................passim
5 U.S.C. § 3345(a)(1).......................................................................................... 30
5 U.S.C. § 3345(a)(2).......................................................................................... 30
5 U.S.C. § 3345(a)(3)....................................................................................11, 30
5 U.S.C. § 3346 ................................................................................................... 20
5 U.S.C. § 3346(a)(2).......................................................................................... 20
5 U.S.C. § 3347 ................................................................................................... 32
5 U.S.C. § 3347(a)(1)..............................................................................13, 29, 34
5 U.S.C. § 3347(a)(1)(B) ..............................................................................13, 36
5 U.S.C. § 3347(b) .............................................................................................. 37
iv

 Statutes and Regulations—Continued
8 U.S.C. § 1103(g) ................................................................................................... 10
28 U.S.C. § 508 .................................................................................................passim
28 U.S.C. § 508(a) ...................................................................................3, 11, 13, 30
28 U.S.C. § 508(b) ................................................................................................... 11
1966 Vacancies Act, Pub. L. No. 89-554, 80 Stat. 378 .....................................34, 35
Act of July 23, 1868, ch. 227, 15 Stat. 168..................................................12, 27, 33
Act of June 22, 1870, ch. 150, § 2, 16 Stat. 162 ...................................................... 12
Act of Mar. 2, 1831, ch. 55, 4 Stat. 452 ................................................................... 25
Act of May 8, 1792, ch. 37, § 8, 1 Stat. 279 ............................................................ 22
Act of Oct. 19, 1977, Pub. L. No. 95-139, 91 Stat. 1171 ........................................ 12
Reorganization Plan No. 4 of 1953, 67 Stat. 636 .................................................... 12
Rev. Stat. § 1674 (2d ed. 1878) ............................................................................... 16
Rev. Stat. § 179 (1st ed. 1875) ................................................................................. 33
Violence Against Women Act of 1994, Pub. L. No. 103-222 ............................... 7, 8
8 C.F.R. § 1003.1(h) .............................................................................................. 1, 2
Legislative Materials
144 Cong. Rec. 12,810–06 (Oct. 21, 1998) (statement of Sen. Byrd)..................... 34
Biographical Directory of the United States Congress 1774-2005,
H.R. Doc. No. 108-222 (2005) .....................................................................23, 27
Memorandum from Morton Rosenberg, Cong. Research Serv.,
Validity of Designation of Bill Lann Lee as Acting Assistant
Attorney General for Civil Rights (Jan. 14, 1998).............................................. 35

v

 Legislative Materials—Continued
S. Comm. on Homeland Sec. & Gov’tl Affairs, 114th Cong., United States
Government Policy and Supporting Positions (Comm. Print 2016) .................. 20
S. Rep. No. 105-250 (1998) ...............................................................................15, 36
1 Trial of Andrew Johnson, President of the United States, Before the
Senate of the United States, on Impeachment by the House of
Representatives for High Crimes and Misdemeanors (1868) ......................24, 25
Executive Materials
Dep’t of Justice, Office of Legal Counsel, Designating an Acting
Attorney General (Nov. 14, 2018) ...............................................................passim
Power of the President to Designate Acting Member of the Federal
Home Loan Bank Board, 1 Op. O.L.C. 150 (1977)............................................ 18
Statement of Administration Policy, S. 2176 - Federal Vacancies Reform
Act of 1988 (Sept. 24, 1998), https://clintonwhitehouse2.archives.gov/
OMB/legislative/sap/105-2/S2176-s.html .......................................................... 36
Thomas Jefferson, Circular to American Consuls (Aug. 26, 1790),
https://founders.archives.gov/documents/Jefferson/01-17-02-0123 .................. 21
Other Authorities
1 American State Papers
(Walter Lowrie & Walter S. Franklin eds., 1834) .............................................. 22
Dep’t of Justice, About the Office (July 17, 2018),
https://www.justice.gov/ag/about-office............................................................. 10
Donald J. Trump (@realDonaldTrump), Twitter (Nov. 7, 2018, 2:44 PM),
https://twitter.com/ realDonaldTrump/status/106025661938319360 .................. 1
Jacqueline Thomsen, Rosenstein Goes to White House for “Preplanned”
Meeting After Sessions Departure, The Hill (Nov. 7, 2018) ,
https://thehill.com/policy/national-security/415594-rosenstein-goes-towhite-house-for-preplanned-meeting-after-sessions .......................................... 19

vi

 Other Authorities—Continued
Neil H. Buchanan & Michael C. Dorf, How to Choose the Least
Unconstitutional Option: Lessons for the President (and Others)
from the Debt Ceiling Standoff, 112 Colum. L. Rev. 1175 (2012) ...................... 5
Nominations Confirmed (Civilian), U.S. Senate,
https://www.senate.gov/legislative/nom_confc.htm........................................... 20
Thomas Berry, Is Matthew Whitaker’s Appointment Constitutional?:
An Examination of the Early Vacancies Acts, Yale J. on Reg.:
Notice & Comment (Nov. 26, 2018), http://yalejreg.com/nc/ismatthew-whitakers-appointment-constitutional-an-examination-ofthe-early-vacancies-acts-by-thomas-berry....................................................24, 25

vii

 INTRODUCTION1
On November 7, 2018, following the resignation of former Attorney General
(“AG”) Jeff Sessions, President Trump tweeted that Matthew G. Whitaker,
Sessions’ chief of staff, would “become our new Acting Attorney General of the
United States.”2 President Trump’s designation of Mr. Whitaker as Acting
Attorney General—the Nation’s highest law enforcement position—subverted
fundamental constitutional checks and balances designed to safeguard our
democracy. The designation violated the constitutional requirement that “Officers
of the United States” serve only “by and with the Advice and Consent of the
Senate,” U.S. Const. art. II, § 2, cl. 2; it ignored the statute governing Attorney
General succession, 28 U.S.C. § 508; and it misapplied the Federal Vacancies
Reform Act of 1998 (“FVRA”), 5 U.S.C. §§ 3345–3349d. Because Mr.
Whitaker’s designation as Acting Attorney General is unlawful, he cannot preside
over this case—or any other immigration matter referred to the Attorney General
under 8 C.F.R. § 1003.1(h).

1

No party’s counsel authored this brief in whole or in part; no party or party’s counsel
contributed money that was intended to fund the preparation or submission of this brief; and no
person (other than amici curiae, their counsel, or their members) contributed money that was
intended to fund the preparation or submission of this brief.
2

Donald J. Trump (@realDonaldTrump), Twitter (Nov. 7, 2018, 2:44 PM), https://twitter.com/
realDonaldTrump/status/1060256619383193601.

1

 SUMMARY OF ARGUMENT
Mr. Whitaker lacks authority to adjudicate immigration cases that, like this
one, were certified pursuant to 8 C.F.R. § 1003.1(h). That regulation contemplates
referral of certain immigration cases to the Attorney General for adjudication,
including, as relevant here, “cases that . . . [t]he Attorney General directs the Board
[of Immigration Appeals] to refer to him.” Id. § 1003.1(h)(1)(i). Implicit in the
regulation is the assumption that the responsible Attorney General or Acting
Attorney General was lawfully installed in the role. Here, notwithstanding the
analysis in a recent opinion by the Justice Department’s Office of Legal Counsel
(“OLC”), Mr. Whitaker’s designation as Acting Attorney General was unlawful: it
violates the Appointments Clause and 28 U.S.C. § 508 (the “AG Succession
Law”), and reflects a misapplication of the FVRA.
The Supreme Court has emphasized that the Appointments Clause is “more
than a matter of ‘etiquette or protocol’; it is among the significant structural
safeguards of the constitutional scheme.” Edmond v. United States, 520 U.S. 651,
659 (1997) (quoting Buckley v. Valeo, 424 U.S. 1, 125 (1976)). The key aspect of
that safeguard—the requirement that principal officers of the United States be
appointed with the advice and consent of the Senate—is designed to “curb
Executive abuses of the appointment power” and “ensure public accountability for
both the making of a bad appointment and the rejection of a good one.” Id. at 659–

2

 60. To bypass that protection raises, in Justice Thomas’ words, “grave
constitutional concerns.” NLRB v. SW General, Inc., 137 S. Ct. 929, 946 (2017)
(Thomas, J., concurring).
The basis of those concerns in this case is that the Attorney General is an
“Officer of the United States,” i.e., a principal officer who must be nominated by
the President and confirmed by the Senate. The Senate did not confirm Mr.
Whitaker either as Attorney General, as “Acting Attorney General,” as Mr.
Sessions’ chief of staff, or as any other officer in this Administration. On its face,
Mr. Whitaker’s designation as Acting Attorney General violates the Appointments
Clause.
His designation also violates the plain text of the AG Succession Law. By
its terms, that statute dictates that the Deputy Attorney General assume the duties
of the Attorney General. Because the AG Succession Law specifically addresses
“a vacancy in the office of Attorney General,” 28 U.S.C. § 508(a), its automatic
succession provisions, rather than the FVRA’s mechanism for designating acting
officials generally, control here. Under the AG Succession Law, Mr. Whitaker is
not the legitimate Acting Attorney General. The Deputy AG is.
Finally, OLC’s contrary analysis fails to overcome the unambiguous text of
the Appointments Clause requiring the advice and consent of the Senate. The
opinion in defense of Mr. Whitaker’s designation extracts from a single case,

3

 United States v. Eaton, 169 U.S. 331 (1898), the categorical proposition that a
person temporarily acting as a principal officer is in fact an inferior officer and
thus does not require Senate confirmation. Dep’t of Justice, Office of Legal
Counsel, Designating an Acting Attorney General 14 (Nov. 14, 2018) (“OLC
Op.”). OLC also claims that “historical practice” in designating acting officials is
consistent with this holding. Id. at 2. But this justification for Mr. Whitaker’s
designation essentially ignores the key caveat in Eaton, as well as crucial features
of the historical examples, that negate the position advanced there. The Court
ruled in Eaton that a subordinate officer does not become a principal when charged
with performing the principal’s duties “for a limited time and under special and
temporary conditions.” 169 U.S. at 343 (emphasis added). The “special
condition” in Eaton was exigency. The choice was between installing as an acting
officer either a person not in a Senate-confirmed position, or no one. The
President’s obligation to “take Care that the Laws be faithfully executed,” U.S.
Const. art. II, § 3, conflicted with the Advice and Consent requirement of the
Appointments Clause. In such circumstances, one or the other of these
constitutional duties must temporarily give way.3 The historical examples that

3

In various circumstances, the Court has recognized that a constitutional mandate must
sometimes yield to a sufficiently powerful opposing interest. The First Amendment right of free
speech, for example, can be overcome by a compelling state interest in avoiding corruption.
Footnote continued on next page

4

 supposedly support Mr. Whitaker’s designation generally present the same sorts of
exigent circumstances—where the choice was between designating a person not
confirmed by the Senate to temporarily perform important functions of the office,
or letting the functions go unperformed.
With regard to the President’s designation of Mr. Whitaker, however, there
are no such special conditions, there is no exigency, and there is no threat to the
President’s “take care” obligation. The President talked for months about firing
Mr. Sessions, and it was widely reported that he would do so just after the midterm
election. The reports proved right. The President “requested” Mr. Sessions’
resignation—a constructive discharge if there ever was one—less than 24 hours
after the polls closed. The President thus had months to plan for the vacancy he
created. Moreover, the Deputy AG, the official designated by statute to act as
Attorney General until confirmation of a new one, was available to step in, as were
numerous other Senate-confirmed officers in the Justice Department.

Footnote continued from previous page

Buckley, 424 U.S. at 26. The same logic applies when constitutional duties, rather than rights,
are at issue—especially when the duty conflicts not just with an opposing interest, but with
another constitutional duty. See Neil H. Buchanan & Michael C. Dorf, How to Choose the Least
Unconstitutional Option: Lessons for the President (and Others) from the Debt Ceiling Standoff,
112 Colum. L. Rev. 1175 (2012) (setting forth criteria for choice where all options are
unconstitutional).

5

 Parachuting in Mr. Whitaker as Acting Attorney General also fails to meet
the other constraints of Eaton. His role is not “limited” or “temporary.” Under the
FVRA, Whitaker potentially could serve until the Administration ends. Eaton thus
cannot salvage this extraordinary evasion of the Appointments Clause.
Because Mr. Whitaker was unlawfully installed as Acting Attorney General,
he cannot perform the duties of that office. Therefore, he cannot adjudicate this
case.
INTEREST OF AMICI CURIAE
The American Immigration Council (the “Council”) is a non-profit
organization established to increase public understanding of immigration law and
policy, advocate for fair and just administration of our immigration laws, protect
the legal rights of noncitizens, and educate the public about the enduring
contributions of America’s immigrants. The Council previously has appeared as
amicus curiae before the Attorney General, and regularly litigates issues relating to
due process, removal defense, and government accountability before the Board and
the federal courts. The Council has a direct interest in ensuring that decisions in
immigration cases are made by fair, impartial, and open-minded adjudicators who
are lawfully authorized to perform an adjudicatory role.
ASISTA Immigration Assistance (“ASISTA”) worked with Congress to
create and expand routes to secure immigration status for survivors of domestic

6

 violence, sexual assault, and other crimes, which were incorporated in the 1994
Violence Against Women Act and its progeny. ASISTA serves as liaison for the
field with DHS personnel charged with implementing these laws. ASISTA also
trains and provides technical support to local law enforcement officials, civil and
criminal court judges, domestic violence and sexual assault advocates, and legal
services, non-profit, pro bono, and private attorneys working with immigrant crime
survivors.
The Harvard Immigration and Refugee Clinical Program (“HIRC”) at
Harvard Law School has been a leader in the field of refugee and asylum law for
over 30 years. The Clinic has an interest in the appropriate application and
development of U.S. asylum and immigration law, so that claims for asylum
protection and other immigration relief receive fair and full consideration under
existing standards of law. HIRC has worked with hundreds of immigrants and
refugees from around the world since its founding in 1984. It combines
representation of individual applicants for asylum and related relief with the
development of theories, policy, and national advocacy. HIRC has been engaged
by the Justice Department in the training of immigration judges, asylum officers
and supervisors on issues related to asylum law. In addition HIRC provides
advice, support, and supplemental services to advocates around the United States
representing asylum seekers.

7

 Since 1993, Her Justice has been dedicated to making quality legal
representation accessible to low-income women in New York City in family,
matrimonial, and immigration matters. Her Justice recruits and mentors volunteer
attorneys from the City’s law firms to stand side-by-side with women who cannot
afford to pay for a lawyer, giving them a real chance to obtain legal protections
that transform their lives. Her Justice’s immigration practice focuses on
representing immigrant survivors of gender-based violence pursuing relief under
the Violence Against Women Act, many of whom are in removal proceedings.
Her Justice has appeared before Courts of Appeals and the United States Supreme
Court in numerous cases as amicus.
Immigrant Defense Project (“IDP”) is a not-for-profit legal resource and
training center that supports, trains, and advises criminal defense and immigration
lawyers, immigrants themselves, as well as judges and policymakers on the
intersection between immigration law and criminal law. IDP is dedicated to
promoting fundamental fairness for immigrants at risk of detention and deportation
based on past criminal charges and therefore has a keen interest in ensuring the
integrity and fairness of agency removal proceedings.
The Northwest Immigrant Rights Project (“NWIRP”) is a non-profit legal
organization dedicated to the defense and advancement of the legal rights of
noncitizens in the United States with respect to their immigrant status. NWIRP

8

 provides direct representation to low-income immigrants, including those seeking
asylum after being placed in removal proceedings.
The Southern Poverty Law Center (“SPLC”) has provided pro bono civilrights representation to low-income persons in the Southeast since 1971. SPLC
has litigated numerous cases to enforce the civil rights of immigrants and refugees
and to ensure that they are treated with dignity and fairness. In 2017 the SPLC
began the Southeast Immigrant Freedom Initiative (“SIFI”), a pro bono project
dedicated to representing immigrants detained by ICE. SIFI is the largest project
of its kind in the United States. It represents clients in both custody and removal
proceedings. SIFI serves detainees in Jena and Pine Prairie, Louisiana; and
Lumpkin, Ocilla, and Folkston, Georgia. The SPLC has a strong interest in
protecting the due process rights of all immigrants in removal proceedings.
ARGUMENT
MR. WHITAKER LACKS AUTHORITY TO ADJUDICATE THIS CASE
I.

Mr. Whitaker’s Designation as Acting Attorney General Violates the
Plain Text of the Appointments Clause
Interpretation of a constitutional provision must start with—and here, can

end with—its plain language. The Appointments Clause of Article II states
unambiguously that the President “shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint . . . Officers of the United States.” U.S. Const.
art. II, § 2, cl. 2. The Clause differentiates these “principal officers,” who must be

9

 nominated by the President and confirmed by the Senate, from “inferior officers,”
who may be appointed by “the President, . . . the Courts of Law, or . . . the Heads
of Departments.” Edmond, 520 U.S. at 660–63.
The Attorney General is the Nation’s top law enforcement official and,
without doubt, is a principal officer who requires Senate confirmation. See id. at
663. He is responsible for “guid[ing] the world’s largest law office and the central
agency for enforcement of federal laws.” Dep’t of Justice, About the Office (July
17, 2018), https://www.justice.gov/ag/about-office. He “represents the United
States in legal matters generally and gives advice and opinions to the President and
to the heads of the executive departments of the Government when so requested.”
Id. And, directly relevant here, he exercises vast authority over the immigration
system, including overseeing all removal proceedings and appointing members of
the Board of Immigration Appeals. See 8 U.S.C. § 1103(g). The Attorney General
is the quintessential “Officer of the United States” under the Appointments Clause.
Yet the President has not nominated Mr. Whitaker to be Attorney General,
and the Senate has not confirmed him. While the Appointments Clause may allow
another “Officer of the United States” serving in a different position with Senate
confirmation to act as Attorney General, Mr. Whitaker’s prior position as Mr.
Sessions’ chief of staff did not require Senate confirmation. The plain language of
the Appointments Clause thus bars him from serving as Acting Attorney General.

10

 II.

Mr. Whitaker’s Designation as Acting Attorney General Contravenes
the Plain Text of Both the AG Succession Law and the FVRA
President Trump purported to install Mr. Whitaker under the FVRA, 5

U.S.C. §§ 3345–3349d. That Act allows the President, upon the death, resignation,
or other incapacity of a Senate-confirmed officer, to designate certain government
employees “to perform the functions and duties of the vacant office temporarily in
an acting capacity.” Id. § 3345(a)(3).
In invoking the FVRA, the President overrode the AG Succession Law.
That statute applies only when the Attorney General spot becomes vacant, and it
unambiguously specifies the order of succession. In the event of a vacancy in the
office of Attorney General, the statute says, “the Deputy Attorney General may
exercise all the duties of that office.” 28 U.S.C. § 508(a). If both the AG and
Deputy AG are unavailable, the law directs that the Associate AG “shall act as
Attorney General.” Id. § 508(b).4 And as a further safety valve, the law authorizes
the Attorney General to “designate the Solicitor General and the Assistant
Attorneys General, in further order of succession, to act as Attorney General.” Id.
Nothing in the provision allows the President to override that statutory sequence.

4

The notion that the designation of the Deputy AG is permissive because the AG Succession
Law says the Deputy “may” exercise the duties of the Attorney General would render the statute
nonsensical. The provision also states that if both the AG and Deputy AG spots are vacant, the
Associate AG “shall” become Acting Attorney General. It makes no sense to read the statute as
merely permitting the Deputy AG to assume the acting role, but mandating that the Associate
AG do so if the Deputy is unavailable.

11

 Since the creation of the Justice Department in 1870, the law has always
specified an order of succession for the office of Attorney General.5 Since 1868,
Congress also has maintained a general vacancies statute, see Act of July 23, 1868,
ch. 227, 15 Stat. 168, which has co-existed with the mandatory AG succession
provisions for nearly 150 years—without incident, until now. The most recent
iteration, the FVRA, was enacted in 1998. See Federal Vacancies Reform Act of
1998, Pub. L. No. 105-277, div. C, tit. I, § 151, 112 Stat. 2681–611. In contrast to
the AG Succession Law, which addresses a vacancy in one and only one office, the
FVRA prescribes the general mechanism for temporarily filling vacancies in more
than a thousand Senate-confirmed positions throughout the federal government. 5
U.S.C. §§ 3345–3349d. Reflecting its broad applicability, it sets out three
alternative ways of designating an acting officer. If the President does nothing, the
first assistant of the departed official assumes those duties. Second, the statute
allows the President to designate a sitting official confirmed to another position.
Third, the President may install certain non-confirmed officials depending on their
pay level and tenure in the agency.

5

The founding statute identified the Attorney General as the head of the Department and
provided that the Solicitor General, his then-top deputy, would be the immediate successor. Act
of June 22, 1870, ch. 150, § 2, 16 Stat. 162, 162. Congress has amended the statute to alter the
order of succession as the lineup of Senate-confirmed offices changed over time. See
Reorganization Plan No. 4 of 1953, 67 Stat. 636; Act of Oct. 19, 1977, Pub. L. No. 95-139, 91
Stat. 1171, 1171. None of these previous provisions reflect any exceptions or caveats.

12

 With one important exception, Congress made the FVRA “the exclusive
means for temporarily authorizing an acting official to perform the functions and
duties of” a Senate-confirmed officer. Id. § 3347(a)(1). The important exception
was that the FVRA would not provide the exclusive mechanism where another
“statutory provision expressly . . . designates an officer or employee to perform the
functions and duties of a specified office temporarily in an acting capacity.” Id. §
3347(a)(1)(B). The AG Succession Law falls precisely within this exception,
because it expressly designates the Deputy Attorney General—and others if the
Deputy is unavailable—to “exercise all the duties of that office.” 28 U.S.C. §
508(a)–(b).
“[W]hen two statutes are capable of co-existence, it is the duty of the courts,
absent a clearly expressed congressional intention to the contrary, to regard each as
effective.” Morton v. Mancari, 417 U.S. 535, 551 (1974). Here, the plain
language of these provisions spells out how they mesh. The FVRA provides the
exclusive mechanism for designating an acting official where a more specific
statute does not apply, and the more specific statute here, the AG Succession Law,
applies—and necessarily is exclusive—where the FVRA is not. Treating each
statute as exclusive in its own sphere not only is true to the statutory language, but
also is required to give the AG Succession Law independent effect. See infra
Section III.C. In any event, where there is a conflict, the accepted canon of

13

 statutory construction dictates picking the specific provision, the AG Succession
Law, over the more general one, the FVRA, which covers the entire Executive
Branch. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639,
645 (2012) (“[I]t is a commonplace of statutory construction that the specific
governs the general . . . . That is particularly true where . . . Congress has enacted a
comprehensive scheme and has deliberately targeted specific problems with
specific solutions.” (internal quotation omitted)).
The AG Succession Law, moreover, serves a function that effectuates the
purpose of the Appointments Clause and is particularly important as to the
Attorney General. The Law assures that any person who assumes the
responsibilities of the Attorney General has been vetted by the Senate and received
its imprimatur as to his or her integrity, experience, and competence to be part of
the leadership of the Justice Department. Indeed, when the Senate confirms the
Deputy AG, it does so knowing that he or she could well need to serve as Acting
Attorney General.
Statutes must be interpreted to avoid constitutional problems, not to create
them, and to respect the constitutional functions of the Senate, not to usurp them.
The reading most faithful to the text of the two laws—and the only interpretation
that gives the AG Succession Law independent effect, see infra Section III.C —is
to treat the AG Succession Law as exclusive where it applies. Under that

14

 interpretation, Mr. Whitaker cannot act as Attorney General. This straightforward,
textual construction would have avoided the serious constitutional problems
created here. See Zadvydas v. Davis, 533 U.S. 678, 689 (2001) .
III.

The Justice Department’s Contrary Analysis Misinterprets the
Constitution, the AG Succession Law, and the FVRA
In an opinion issued November 14, 2018, the Justice Department, through

OLC, attempted to justify Mr. Whitaker’s designation, asserting that the
Appointments Clause does not mean what its text clearly says. According to this
defense, Mr. Whitaker is a lawful temporary appointee under the FVRA. The
theory—untethered from the constitutional text—is that an individual who
temporarily exercises the duties of a principal officer is only an inferior officer
under the Appointments Clause, and thus the President can appoint him without
Senate confirmation.
The opinion is yet another in a series where OLC has misinterpreted the
Constitution, as well as statutes like the FVRA, to aggrandize presidential power
over appointments.6 The argument here rests on the Supreme Court’s decision in

6

Repeatedly, the Supreme Court has rejected these attempts. See, e.g., NLRB v. Noel Canning,
134 S. Ct. 2550, 2574 (2014) (rebuffing OLC’s position allowing recess appointments during de
facto intra-session Senate recesses with frequent pro forma sessions); SW General, 137 S. Ct. at
942–43 (rejecting OLC’s position that the FVRA restricts only first assistants, as opposed to all
acting officers, from serving after their nomination). Congress, too, has sought to block OLC’s
weakening of the Appointments Clause. The FVRA itself was enacted to stop “aggressive”
practices of the Executive Branch, especially in the Justice Department, in the designation of
acting officials. S. Rep. No. 105-250, at 4 (1998); see also id. at 3 (characterizing OLC’s
Footnote continued on next page

15

 Eaton, but it misses principles critical to the ruling. Eaton establishes only that
unconfirmed, inferior officers may act as principal officers in exigent
circumstances, where their performance of the principal’s functions is necessary to
satisfy the President’s coordinate constitutional duty to “take Care that the Laws be
faithfully executed,” U.S. Const. art. II, § 3. The historical practice OLC cites is
consistent with this holding as so limited. Because there is no emergency here and
this case does not involve an inferior officer, Eaton does not validate Mr.
Whitaker’s designation.
A.

Eaton Does Not Excuse Mr. Whitaker’s Designation from the
Constraints of the Appointments Clause
1.

Eaton Is Limited to Exigent Circumstances

To justify Mr. Whitaker’s designation, OLC overreads the holding in Eaton.
In that case, the Senate-confirmed consul in Bangkok, Siam had to return to the
United States for medical treatment. 169 U.S. at 331. A statute provided that the
vice-consul—an inferior officer appointed by the Secretary of State—could take
over for a consul “when [he] shall be temporarily absent or relieved from duty.”
Id. at 336 (quoting Rev. Stat. § 1674 (2d ed. 1878)). Because the vice-consul was
abroad and could not reach Siam for months, the consul made an “emergency

Footnote continued from previous page

interpretation excluding certain appointments from prior Vacancies Act as “wholly lacking in
logic, history, or language”).

16

 appointment” of Lewis Eaton under a regulation allowing the appointment of “a
person to perform temporarily the duties of the consulate” if both the consul and
vice-consul offices were vacant. Id. at 338, 340.
Acknowledging that the Appointments Clause expressly requires Senate
confirmation of consuls, the Court in Eaton explained that a vice-consul was an
inferior officer who could be appointed without Senate approval and then act for
the consul. That Mr. Eaton, the “subordinate officer,” was “charged with the
performance of the duty of the superior for a limited time, and under special and
temporary conditions,” did not “thereby transform[] [him] into the superior and
permanent official.” Id. at 343 (emphasis added).
The Court made clear what it meant by “special conditions.” To bar
temporary appointments like Eaton’s, the Court held, “would render void any and
every delegation of power to an inferior to perform under any circumstances or
exigency the duties of a superior officer, and the discharge of administrative duties
would be seriously hindered.” Id. In other words, the Court recognized that no
Senate-confirmed official would be available to perform the legal duties of the
consul for months. Although the Court did not expressly invoke the “take care”
clause, that was the obligation the Court described. See Williams v. Phillips, 482
F.2d 669, 670 n.1 (D.C. Cir. 1973) ) (“[T]he traditional view is that an emergency
creates the condition for the exercise of power” to make temporary appointments);

17

 see also Power of the President to Designate Acting Member of the Federal Home
Loan Bank Board, 1 Op. O.L.C. 150, 151 (1977) (“[OLC] has taken the position
that the power to make . . . interim designations flows from the President’s
responsibility to keep executive branch agencies in operation . . . .”). Preventing
imminent default on one constitutional obligation—in particular, the obligation to
implement the laws prescribed by Congress—justified a limited, temporary
relaxation of another. Cf. Bain Peanut Co. of Tex. v. Pinson, 282 U.S. 499, 501,
(1931) (Holmes, J.) (“[T]he machinery of government would not work if it were
not allowed a little play in its joints.”).
The defense of Mr. Whitaker’s appointment ignores the exigency in Eaton,
instead focusing solely on the time limitation to validate the appointment of a fillin. But the Court did not hold that the President has unfettered power to bypass
Senate confirmation for short-lived appointments. If a President on inauguration
day nominated an Attorney General but specified she would resign in six months,
she still would need Senate confirmation. The time limitation plus the “special
condition” were the prerequisites for Eaton’s dispensation from the unambiguous
strictures of the Appointments Clause, and the “special condition” there was
exigency.

18

 2.

No Temporary or Special Conditions Excuse the Violation
of the Appointments Clause Here

In designating Mr. Whitaker as Acting Attorney General, the President cited
no exigent circumstances necessitating a departure from the plain language of the
Appointments Clause. There were none.
First, the AG’s “resignation” was not a surprise to the President. The AG’s
letter of resignation expressly stated that the President “asked” him to step down.
See Letter from Atty. Gen. Jefferson B. Sessions III to Pres. Donald J. Trump at 1
(undated) (“At your request, I am submitting my resignation.”). Nor was the
“resignation” a surprise to anyone else. For months, reports circulated that the
President planned to fire the AG after the midterm election. See, e.g., Jacqueline
Thomsen, Rosenstein Goes to White House for “Preplanned” Meeting After
Sessions Departure, The Hill (Nov. 7, 2018), https://thehill.com/policy/nationalsecurity/415594-rosenstein-goes-to-white-house-for-preplanned-meeting-aftersessions. The President thus had plenty of time to identify a successor and to
select a Senate-confirmed officer to take Mr. Sessions’ place. Nor has the
President articulated a reason Mr. Sessions could not have remained in office until
a successor was confirmed. The contrived vacancy here neither reflected nor
produced any exigent circumstances.
Second, the official specifically designated in the AG Succession Law to act
as Attorney General—the Deputy AG—was available to serve. And there were at
19

 least ten other Senate-confirmed officials in the Justice Department, among them
the Solicitor General and nine confirmed Assistant AGs who head the
Department’s divisions, at the time Mr. Sessions resigned. See Nominations
Confirmed (Civilian), U.S. Senate, https://www.senate.gov/legislative/nom
_confc.htm (last visited Nov. 25, 2018); S. Comm. on Homeland Sec. & Gov’tl
Affairs, 114th Cong., United States Government Policy and Supporting Positions
92–93 (Comm. Print 2016). By ignoring not only the line of succession dictated
by the AG Succession Law, but also the availability of other Senate-confirmed
officials in the leadership of the Justice Department, the President has ceded any
possible claim that some emergency compelled installation of an Acting Attorney
General from a non-confirmed position.
Nor does Mr. Whitaker’s service as Acting Attorney General clearly satisfy
Eaton’s requirement that it be “limited” and “temporary.” 169 U.S. at 343; see
also SW General, 137 S. Ct. at 946 n.1 (Thomas, J., concurring). The FVRA
allows Whitaker to serve for 210 days, and even longer if President Trump
nominates an Attorney General during Whitaker’s service. 5 U.S.C. § 3346. In
fact, were the President’s nominee to remain pending before the Senate, Mr.
Whitaker could serve indefinitely. Id. § 3346(a)(2).

20

 3.

In Contrast to the Consul in Eaton, the Attorney General Is
a Cabinet-Level Officer and One of the Most Powerful
Officials in the Federal Government

The defense of Mr. Whitaker’s designation overlooked another limitation in
Eaton. The case involved consuls, not Cabinet officers. Although the
Appointments Clause expressly designates consuls as principals, they report to the
Secretary of State, not the President. They are not even the chief U.S.
representatives in foreign countries. And their responsibilities focus primarily on
facilitating trade and reporting on commercial and political developments in their
regions. See Thomas Jefferson, Circular to American Consuls (Aug. 26, 1790),
https://founders.archives.gov/documents/Jefferson/01-17-02-0123 (memorandum
defining duties of consular officials).
In contrast, the Attorney General reports directly to the President and
exercises a level of supervisory and decision-making authority rare even among
Cabinet officials. See supra Part I. That Eaton treated an acting consul as an
inferior officer due to “special and temporary conditions” does not mean that a far
more powerful, responsible, and independent position like Acting Attorney
General is likewise an inferior office. On all the criteria the Court has articulated
for differentiating between principal and inferior officers, the Acting Attorney
General is a principal: he is not supervised by a Senate-confirmed cabinet official,
but rather reports directly to the President; he oversees the federal law-enforcement

21

 regime; and he has jurisdiction over enforcement of the federal criminal code. Cf.
Edmond, 520 U.S. at 663 (citing as relevant to inferior-officer status that officer
was “directed and supervised” by another Senate-confirmed officer); Morrison v.
Olson, 487 U.S. 654, 671–72 (1988) (citing as relevant to inferior-officer status the
officer’s limited duties and narrow jurisdiction). Only an official confirmed by the
Senate can the exercise the functions of the Attorney General.
B.

Historical Practice Undermines the Validity of Mr. Whitaker’s
Designation as Acting Attorney General

According to OLC, Eaton ratified a “historical practice” of non-Senateconfirmed individuals stepping in for principal officers. See OLC Op. at 7. On
closer examination, the examples on which the defense of Mr. Whitaker’s
designation relies do not corroborate its attempted aggrandizement of presidential
power. In fact, the history of presidential appointments shows that only emergency
circumstances justify departing from the clear requirements of the Appointments
Clause.
1.

The Earliest Provisions for Filling Vacancies Sought to
Adhere to the Appointments Clause Absent Exigent
Circumstances

To begin with, early Congresses strictly limited the President’s authority to
designate non-Senate-confirmed individuals as acting officers. A 1792 statute
authorized the President, when “necessary,” to appoint “any person” to fill in for
the Secretaries of State, the Treasury, or the War Department, but only “in case of
22

 the death, absence from the seat of government, or sickness . . . whereby they
cannot perform the duties of their said respective offices.” Act of May 8, 1792, ch.
37, § 8, 1 Stat. 279, 281 (emphasis added). The circumstances contemplated in the
statute were thus paradigmatically vital and pressing: death and sickness are
unexpected and, in the 1790s, trips from Washington were usually lengthy,
perilous, and unpredictable. Further, Congress could reasonably expect that
vacancies would occur when no one confirmed by the Senate was available to fill
them. The Departments of State and War, for example, had no Senate-confirmed
personnel other than the Secretary residing in the capital. See List of Civil Officers
of the United States, Except Judges, with Their Emoluments, for the Year Ending
October 1, 1792, in 1 American State Papers 57, 57–58 (Walter Lowrie & Walter
S. Franklin eds., 1834).7 These early statutes are thus strong evidence that the first
few Congresses—which included Framers of the Constitution—were prepared to
allow relaxation of the Appointments Clause only under exigent circumstances.

7

Even so, Presidents Washington and Adams relied only on Senate-confirmed cabinet officials
to step in for principal officers. OLC Op. at 9; see Joint Comm. on Printing, Biographical
Directory of the United States Congress 1774-2005, H.R. Doc. No. 108-222, at 3 (2005). Not
until 1809 did President Jefferson designate a non-confirmed employee as Acting Secretary of
War when the Secretary resigned. Biographical Directory of the United States Congress 17742005, supra, at 4.

23

 2.

Historical Practice from 1809–1860 Continued to Adhere to
the Appointments Clause Absent Exigent Circumstances

OLC’s opinion asserts that there were 160 instances between 1809 and 1860
where a non-Senate-confirmed officer temporarily served as an acting principal
officer. OLC Op. at 10. These examples, however, do not establish any
presidential license to ignore the Appointments Clause. Quite the contrary, they
support the notion that the Clause’s requirements were understood to give way
only when truly necessary.
A large share of the examples supposedly supporting Mr. Whitaker’s
designation come from State Department records used as evidence in President
Johnson’s impeachment trial. See OLC Op. at 10. These records list individuals
who between 1829 and 1860 “discharged the duties of officers of the cabinet,”
either on an “acting” or an “ad interim” basis. 1 Trial of Andrew Johnson,
President of the United States, Before the Senate of the United States, on
Impeachment by the House of Representatives for High Crimes and Misdemeanors
585 (1868); see id. at 575–81, 585–88, 590–94. An “acting” officer was someone
who stepped in when the Senate-confirmed cabinet secretary was ill or travelling
but remained in office; an “ad interim” officer temporarily filled a gap following a
Secretary’s death or resignation. See id. at 575, 585; see also Thomas Berry, Is
Matthew Whitaker’s Appointment Constitutional?: An Examination of the Early
Vacancies Acts, Yale J. on Reg.: Notice & Comment (Nov. 26, 2018),
24

 http://yalejreg.com/nc/is-matthew-whitakers-appointment-constitutional-anexamination-of-the-early-vacancies-acts-by-thomas-berry.
Many if not all of these temporary officers—both acting and ad interim—
served because of exigencies in the sense contemplated by Eaton. For one, the
acting officers in this period outnumbered ad interim officers 178 to 15. See Trial
of Andrew Johnson, supra, at 585–88. Acting service implies exigency: the
Secretary remained at the helm of his department but was unable to perform
important duties for a short but indeterminate period of illness or travel.8 As for
the ad interim appointments, it is telling that Presidents typically chose other
Senate-confirmed secretaries to fill in, “especially if the vacancy was to last a
significant time.” Berry, supra (analyzing State Department records). And even in
the relatively few cases where Presidents chose non-Senate-confirmed ad interim
officers, other options were sparse or nonexistent, as the federal workforce well
into the 1800s was very small, with few Senate-confirmed officers available.9
Indeed, it appears that all of these cases involved exigent circumstances. Reply

8

In describing these historical examples, OLC makes no reference to the difference between
acting and ad interim service. It instead incorrectly labels all periods of temporary service
during this period ad interim despite the relative rarity of such appointments. OLC Op. at 10.
This error is not merely semantic: historical examples of acting service do nothing to show that
there was a historical practice relevant to this case—i.e., one of temporary appointments
following firings or resignations.
9
See, e.g., Act of Mar. 2, 1831, ch. 55, 4 Stat. 452, 453 (showing that, as of 1831, State
Department employed only clerks and similar functionaries in Washington).

25

 Supp. Mot. Substitute 20–22, Michaels v. Sessions, No. 18-496 (S. Ct. Nov. 28,
2018). Thus, in the first half of the 1800s, the constitutional choice of evils—
between defaulting on the obligation to faithfully execute the laws or temporarily
installing an acting principal officer who had not received Senate confirmation—
was sufficiently stark and frequent as to dispel any probative value of the examples
tendered in support of Mr. Whitaker’s appointment. Most significantly, never in
history has a President removed a Senate-confirmed Cabinet member to install a
person from a non-confirmed position. Id. at 21.
3.

Vacancy Statutes From 1868 Continued to Respect the
Requirements of the Appointments Clause

Congress’s response to these decades of temporary appointments further
confirms a common understanding that only an emergency could justify relaxing
the strictures of the Appointments Clause. Following President Johnson’s
impeachment—alleging abuses of the appointment and removal power—Congress
tightened its limits on temporary appointments. In 1868, Congress replaced the
various statutes governing executive vacancies with a single Vacancies Act. See
Act of July 23, 1868, ch. 227, 15 Stat. 168. By default, if a department head died,
resigned, left Washington, or fell ill, “the first or sole assistant” automatically took
over until a successor was confirmed or the incumbent could resume his service.
Id. § 1. If the cause of the vacancy was death or resignation, the acting official
could serve a maximum of ten days. Id. § 3. And while the President had
26

 discretion to choose another officer instead of the first assistant, that officer had to
be in a Senate-confirmed position. Id.
The defense of the Whitaker designation describes the 1868 Act as
“preserv[ing] the possibility that a non-Senate-confirmed first assistant would
serve as an acting head of an executive department.” OLC Op. at 8. The word
“possibility” masks some very long odds: as of 1868, every single cabinet
department had a Senate-confirmed assistant.10 And, importantly, neither the 1868
Act nor any previous vacancies statute applied to the Attorney General. OLC Op.
at 11–12. In fact, OLC identifies only one instance in the history of the Republic
(until now) where a non-Senate-confirmed individual served as Acting Attorney
General—for a single week in 1866, two years before the creation of a Senateconfirmed Assistant Attorney General position. Id. at 12 & n.10.
In any event, historical practice from many decades after the founding sheds
scant light on the original meaning of the Appointments Clause. “[A] selfaggrandizing practice adopted by one branch well after the founding . . . does not

10

See Biographical Directory of the United States Congress 1774-2005, supra, at 10 (listing
cabinet positions during Johnson administration); 11 J. Exec. Proc. Sen. 291 (March 8, 1861)
(Assistant Secretary of State confirmed); 15 J. Exec. Proc. Sen. 1057, 1168 (July 27, 1866)
(War); id. at 1172-73 (July 28, 1866) (First Assistant Postmaster-General); id. at 835, 840 (May
31, 1866) (Navy); 13 J. Exec. Proc. Sen. 97, 104 (Jan. 3, 1863) (Interior). There was no
confirmed Assistant Secretary of the Treasury at the time the 1868 Act was passed, but President
Johnson submitted nominees for Senate consideration before and after its passage. See, e.g., 18 J.
Exec. Proc. Sen. 363 (July 25, 1868).

27

 relieve [courts] of [their] duty to interpret the Constitution in light of its text,
structure, and original understanding.” Noel Canning, 134 S. Ct. at 2594 (Scalia,
J., concurring in the judgment). In other words, “[p]ast practice does not, by itself,
create power.” Medellín v. Texas, 552 U.S. 491, 532 (2008) (quoting Dames &
Moore v. Regan, 453 U.S. 654, 686 (1981)).
The historical stray cats collected in defense of Mr. Whitaker’s designation
thus do not provide the advertised “compelling support” for the conclusion “that
the position of an acting principal officer is not itself a principal officer,” OLC Op.
at 8. Quite the contrary, the history comports with the premise underlying Eaton
that the requirements of the Appointments Clause bend only in exigent
circumstances, and then only as necessary to ensure that the Executive Branch can
faithfully execute the laws.
C.

Whitaker’s Designation Improperly Nullifies the
AG Succession Law

Aside from being inconsistent with the plain statutory language—the best
evidence of congressional intentthe analysis of the AG Succession Law
advanced in defense of Mr. Whitaker’s designation necessarily presumes Congress
intended to render that statute a nullity in the primary situation where it applied.
The law heavily disfavors such a conclusion. See Duncan v. Walker, 533 U.S. 167,
174 (2001) (statute should be construed so that “no clause, sentence, or word shall
be superfluous, void, or insignificant” (quoting Market Co. v. Hoffman, 101 U.S.
28

 112, 115 (1879))). In order to give both the AG Succession Law and the FVRA
effect, each statute must be interpreted as exclusive where it applies. Contrary to
OLC’s analysis, the available evidence comports with the statutory text and belies
the idea that Congress intended to retain the mandatory mechanism of the AG
Succession Law, but allow the President to displace it at will by invoking the
FVRA. The defense of Mr. Whitaker’s selection thus misses the mark in
concluding that the non-exclusive FVRA remains an “option” for the President to
invoke whenever he chooses to ignore the order of succession prescribed in the AG
Succession Law. See OLC Op. at 4.
1.

Under the Structure of the Appointments Process, the AG
Succession Law Is Exclusive When There is a Vacancy in
the Office of the Attorney General

On the theory advanced in support of the designation of Mr. Whitaker, the
Congress that enacted the FVRA intended to authorize the President to override the
AG Succession Law at will. But Congress included no such authorization in the
statutory text. On the contrary, it provided that the FVRA’s exclusivity provision
would not apply where another “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).
The contrary interpretation would leave the AG Succession Law with no
independent effect. If the Attorney General position became vacant and the

29

 President could rely on the FVRA to displace the AG Succession Law, he would
have three options under that statute: to choose a Senate-confirmed official
(including the Deputy AG), see 5 U.S.C. § 3345(a)(2), to direct an agency
employee who was not Senate-confirmed to perform those duties, see id.
§ 3345(a)(3), or to do nothing, in which case the responsibilities of the Attorney
General automatically would transfer to the “first assistant”—statutorily defined as
the Deputy AG, 28 U.S.C. § 508(a)—to act as Attorney General, see id.
§ 3345(a)(1). The provisions of the AG Succession Law, which likewise
automatically designate the Deputy AG to act for the Attorney General, would be
rendered a nullity in precisely the situation that triggers them.
Critically, under the interpretation offered in support of Mr. Whitaker’s
designation, there is no instance in which the AG Succession Law would operate
as the statute Congress enacted: a mandatory, automatic succession statute that
limits the individuals authorized to act as Attorney General to the Attorney
General’s top Senate-confirmed deputy and other Senate-confirmed Justice
Department leaders. Instead, the congressionally specified succession order would
apply only where the President declined to expressly invoke the FVRA and
designate an Acting Attorney General, in which case both the FVRA and the AG
Succession Law automatically would install the Deputy AG in the acting role.
Even then, though, it would be impossible to know whether the succession

30

 occurred under the “first assistant” provision of the FVRA or the automatic
succession provisions of the AG Succession Law.11 The provisions of the AG
Succession Law, if they applied at all to an AG vacancy, would no longer be
mandatory or automatic, but rather would turn on presidential choice. Such a
construction does not “regard each [statute] as effective.” Morton v. Mancari, 417
U.S. 535, 551 (1974). If Congress had intended the FVRA to supersede the AG
Succession Law in this manner, it could have repealed the AG Succession Law to
make the FVRA the only way to designate an Acting Attorney General. It could
have amended the AG Succession Law to allow the President to override the
default order of succession. Or it could have expressly provided that the FVRA
applies to designation of an Acting Attorney General. It took none of those steps.
The flaws in this defense of Mr. Whitaker’s designation, however, go
beyond rendering the AG Succession Law a nullity. If it is correct that both the
FVRA and AG Succession Law remain an “option” for the President, OLC Op. at
4, a conflict would arise every time the office of Attorney General became vacant
and the President did nothing. Under the AG Succession Law, when the Deputy
AG automatically assumes the duties of the Attorney General, no time limits apply
to that service. See 28 U.S.C. § 508. By contrast, if the Deputy AG becomes

11

The President might seek to clarify which one controls, but given that both statutes operate
automatically, it is not clear whether the President gets to make that call.

31

 Acting Attorney General under the default “first assistant” rule of the FVRA, all of
the FVRA’s limitations apply, including the time limits. See 5 U.S.C. § 3347.
Plainly, these conflicting default states cannot simultaneously exist. “When faced
with a conflict between two statutes, courts must attempt to interpret them so as to
give effect to both statutes,” In re Mirant Corp., 378 F.3d 511 (5th Cir. 2004)
(citing Morton, 417 U.S. at 551)—here, by interpreting the AG Succession Law as
exclusive. Moreover, under accepted canons of statutory construction, the more
specific statute, the AG Succession Law, applies in preference to the more general.
See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645–46
(2012).12
2.

The Background of the FVRA and the AG Succession Law
Shows that the AG Succession Law Is Exclusive

For 130 years, from the establishment of the Justice Department until the
adoption of the FVRA, the AG Succession Law, not the general vacancies statute
in place since 1868, governed the designation of an Acting Attorney General.
Under the theory proffered in support of Mr. Whitaker’s selection, Congress in the

12

The one narrow exception, where the FVRA could provide a mechanism to designate an
Acting Attorney General, proves the rule. Where no Senate-confirmed official specified in the
AG Succession Law is available to perform the duties of the Attorney General—for example,
because all offices in the line of succession are vacant—the FVRA would allow the President to
direct another qualified official to act as AG. In that limited instance, such a designation would
not conflict with the mandatory ladder in the AG Succession Law. For all other vacancies in the
office of Attorney General, the AG Succession Law is exclusive.

32

 FVRA reassigned the authority regarding AG vacancies from the AG Succession
Law to the FVRA (when the President chooses to invoke it). It is implausible that
Congress would adopt such a sea change from 130 years of legislative practice
subtly rather than expressly, and without discussing the issue.
Following the first compilation and reconciliation of federal statutes at the
direction of Congress, the revised federal code provided that the Vacancies Act of
1868 did not authorize the President to depart from the succession order mandated
in the more specific AG statute. Rev. Stat. § 179 (1st ed. 1875); see also OLC Op.
at 13 (acknowledging this fact). There, the compilers of the revised statutes
resolved the question whether the general vacancies provisions or the AG-specific
statute should control, in favor of the latter. Congress then codified the revised
statutes as official U.S. law and repealed all prior statutes. See U.S. Nat’l Bank of
Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 449 & n.4 (1993)
(describing 1874 Revised Statutes as “a massive revision, reorganization, and
reenactment of all statutes in effect at the time, accompanied by a simultaneous
repeal of all prior ones”).
Over the next 130 years, Congress revised both the AG succession
provisions and the general vacancies statute multiple times, but retained the
automatic succession provisions. Following the revision and codification of
federal personnel law in 1966, the general vacancies provisions authorized the

33

 President to direct certain Senate-confirmed officials to serve as acting officials in
place of the “first assistant,” but specifically provided that “[t]his section does not
apply to a vacancy in the office of Attorney General.” Pub. L. No. 89-554, 80 Stat.
378, 426 (1966). In 1998, when it enacted the FVRA, Congress expressly
exempted from the FVRA’s exclusivity provision not only the Attorney General
but various other offices subject to specific succession statutes. See 5 U.S.C. §
3347(a)(1) (deeming the FVRA the exclusive mechanism for determining an acting
successor for a Senate-confirmed position 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”).
To argue that Congress in the FVRA junked its approach of the prior 130
years, the defense of Mr. Whitaker’s designation must offer more than
congressional silence. Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 468 (2001)
(“Congress . . . does not alter the fundamental details of a regulatory scheme in
vague terms or ancillary provisions—it does not, one might say, hide elephants in
mouseholes.”).
Finally, the theory that the President has the “option” of overriding the
otherwise applicable AG Succession Law by invoking the FVRA, see OLC Op. at
4, is at odds with the statute’s purpose of preventing presidential evasion of the
confirmation requirement by installing acting officials, see, e.g., 144 Cong. Rec.

34

 27,497 (1998) (statement of Sen. Byrd) (purpose of the statute was to “bring[] to
an end a quarter century of obfuscation, bureaucratic intransigence, and outright
circumvention”). Congress enacted the FVRA amidst significant concern
regarding this topic, in particular, the Justice Department’s perceived
encroachment on the Senate’s advice and consent prerogative. SW General, 137 S.
Ct. at 936 (explaining that, following the designation of Bill Lann Lee to serve as
Acting Assistant AG for the Civil Rights Division after the Senate refused to
confirm him, Congress “[p]erceiv[ed] a threat to the Senate’s advice and consent
power” and “replaced the Vacancies Act with the FVRA”).
Prior to the FVRA, the Department of Justice had taken the position that the
Administration could bypass the Vacancies Act (including time limitations) by
invoking the general authorization in its organic statute, permitting the head of an
agency to delegate powers and functions of the office to subordinates. Id. at 935–
36; see also Memorandum from Morton Rosenberg, Cong. Research Serv.,
Validity of Designation of Bill Lann Lee as Acting Assistant Attorney General
for Civil Rights 1 (Jan. 14, 1998) (describing history of the FVRA). The FVRA
expressly overrode this position, allowing exceptions to the FVRA’s exclusivity
provision only for statutes that “designate[d]” specific officials for acting service,

35

 as opposed to granting general authority “to delegate duties statutorily vested in
th[e] agency head.” 5 U.S.C. § 3347(a)(1)(B), (b).13
Far from reining in presidential abuses as Congress intended, the FVRA as
interpreted in support of Mr. Whitaker’s designation would vastly expand the
President’s authority to circumvent the nomination process by allowing him—at
any time, and for any reason—to demand the resignation of or fire a Senateconfirmed officer and replace that officer with a hand-picked successor who is not
Senate-confirmed. The President would have the opportunity not only to fill
vacancies with non-Senate-confirmed persons, but to create the opportunity to do
so. A President armed with this authority could staff the entire Administration for
the 210 days allowed by the FVRA, and perhaps longer. If Congress had intended
to alter the AG Succession Law and prior vacancies act in such a significant way, it
would have said so in the text.
*

*

13

*

Further, the legislative record shows that the provision allowing the President to select a nonconfirmed employee of the relevant agency was added to avoid a situation where no confirmed
person with the right skill set was available. The bill as reported out of committee did not
contain that option. See S. Rep. No. 105-250, at 25 (1998). President Clinton threatened a veto,
complaining that it would force the President to bypass qualified civil servants and select
someone unqualified as an acting officer—a type of exigency argument. See Statement of
Administration Policy, S. 2176 - Federal Vacancies Reform Act of 1988 (Sept. 24, 1998),
https://clintonwhitehouse2.archives.gov/OMB/legislative/sap/105-2/S2176-s.html. To allay
these concerns, Congress added the third prong.

36

 CONCLUSION
Because Mr. Whitaker is not a Senate-confirmed officer, a proper reading of
the AG Succession Law and the FVRA, consistent with the requirements of the
Appointments Clause, precludes him from exercising the powers of the AG.
Therefore, Mr. Whitaker cannot adjudicate this case.

Dated: November 30, 2018
Robert N. Weiner
R. Stanton Jones
Kaitlin Konkel
Samuel F. Callahan*
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave. NW
Washington, DC 20001
(202) 942-5000
robert.weiner@arnoldporter.com
* Admitted outside the District of
Columbia; practicing law in D.C.
under the supervision of Firm
principals who are D.C. Bar members

Respectfully submitted,
Trina Realmuto
AMERICAN IMMIGRATION
COUNCIL
1318 Beacon Street
Brookline, MA 02466
(857) 305-3600
trealmuto@immcouncil.org
Karolina Walters
AMERICAN IMMIGRATION
COUNCIL
1331 G Street NW, Suite 200
Washington, DC 20005
(202) 507-7500
kwalters@immcouncil.org
Counsel for Amici Curiae

37

 CERTIFICATE OF COMPLIANCE
This brief complies with the instructions in the Attorney General’s referral
order dated October 18, 2018 because the brief contains 8,721 words, excluding
the cover page, Table of Contents, Table of Authorities, signature block,
Certificate of Compliance, and Certificate of Service.

Dated: November 30, 2018

/s Robert N. Weiner
Robert N. Weiner

 CERTIFICATE OF SERVICE
I hereby certify that, on November 30, 2018, the foregoing brief was
submitted electronically to AGCertification@usdoj.gov and in triplicate via FedEx
to:
United States Department of Justice
Office of the Attorney General, Room 5114
950 Pennsylvania Avenue, NW
Washington, DC 20530
I further certify that, on November 30, 2018, copies were sent via FedEx to
the parties at the following addresses:
Andrew Pincus, Esq.
Mayer Brown LLP
1999 K Street, NW
Washington, DC 20006

Kirstjen M. Nielsen
c/o Office of the General Counsel
Department of Homeland Security
Mail Stop 3650
Washington, DC 20528

Hiroko Kusada, Esq.
Loyola New Orleans College of Law
Immigration Clinic
7214 St. Charles Street
Box 902
New Orleans, LA 70118

Office of the General Counsel
U.S. Department of Homeland Security
245 Murray Lane, SW
Mail Stop 0485
Washington, DC 20528-0485

DHS/ICE Office of Chief Counsel
1250 Poydras Street Suite 2100
New Orleans, LA 70113

Rhonda M. Dent, Acting Chief
Immigration Law and Practice Division
U.S. Immigration and Customs Enforcement
U.S. Department of Homeland Security
500 12th Street SW, Mailstop 5900
Washington, DC 20536

Dated: November 30, 2018

/s Robert N. Weiner
Robert N. Weiner