Federal Vacancies Reform Act of 1998

Legal challenges to Matthew Whitaker appointment now before the Supreme Court

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The state of Maryland took the lead in filing a lawsuit to challenge Matthew Whitaker’s unconstitutional and illegal appointment as acting Attorney General. Whitaker’s Appointment as Acting Attorney General Faces Court Challenge:

Now, Mr. Whitaker’s appointment is facing a court challenge. The State of Maryland asked a federal judge on Tuesday for an injunction declaring that Mr. Whitaker is not the legitimate acting attorney general as a matter of law, and that the position — and all its powers — instead rightfully belongs to the deputy attorney general, Rod J. Rosenstein.

Mr. Trump may not “bypass the constitutional and statutory requirements for appointing someone to that office,” the state said in a court filing.

[Read Maryland’s court filings.]

Maryland is asking a judge — Ellen L. Hollander of the Federal District Court for the District of Maryland, a 2010 Obama appointee — to rule on who is the real acting attorney general as part of a lawsuit in which it sued Mr. Sessions in his official capacity. Because Mr. Sessions is no longer the attorney general, the judge must substitute his successor as a defendant in the litigation, so she has to decide who that successor legally is.

It is not entirely clear to me how the state of Maryland establishes standing to bring this lawsuit. Standing is not a problem, however, for three Democratic Senators on the Senate Judiciary Committee who filed a separate lawsuit on Monday. Democratic Senators Challenge Whitaker Appointment in Court:

Three Democratic senators asked a Federal District Court judge on Monday to issue an injunction barring Matthew G. Whitaker from exercising the powers of head of the Justice Department, arguing that President Trump’s installation of Mr. Whitaker as acting attorney general violated the Constitution.

The senators — Richard Blumenthal of Connecticut, Mazie K. Hirono of Hawaii and Sheldon Whitehouse of Rhode Island — sit on the Judiciary Committee, which conducts confirmation hearings for attorney general nominees. They argued that an official who had not been Senate-confirmed could not run the Justice Department, even temporarily.

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The Federal Vacancies Reform Act of 1998 is about to become a big effin’ deal

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Andrew Rudalevige, the Thomas Brackett Reed Professor of Government at Bowdoin College, has an excellent summary of the legal battle over the director of the Consumer Financial Protection Bureau (CFPB). It’s the Game of Vacancies at the CFPB! Watch out for the bureaucratic duel of conflicting statutes.

It’s not exactly “Game of Thrones” – federal budget procedures make it difficult to acquire decent-sized dragons – but there is a monstrous battle over who should be head of the Consumer Financial Protection Bureau (CFPB).

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The Dodd-Frank Act, which created the CFPB, decreed that it should have a single Senate-confirmed director who would serve a fixed term and could not be fired by the president. It also funded the agency via the Federal Reserve instead of the regular budget process, limiting legislators’ ability to slash the CFPB’s budget during annual appropriations.

Most relevant to this week’s drama, the Dodd-Frank Act also states that the agency’s deputy director becomes its acting director in the event of a vacancy at the top. Last Friday, director Richard Cordray resigned, amid speculation that he might run for governor in Ohio. On his way out the door, he named his chief of staff, Leandra English, as deputy director – and thus, in short order, acting director.

FVRA vs. Dodd-Frank: Bureaucratic battle of the giant statutes

Or was she? President Trump turned to a different statute – the Federal Vacancies Reform Act of 1998. The FVRA allows a deputy to fill a temporary vacancy, but also provides that the president can instead appoint another executive branch official in that deputy’s place, so long as that official has also been confirmed by the Senate. And so as soon as Cordray’s resignation took effect, Trump named Office of Management and Budget director Mick Mulvaney to do double duty at CFPB.

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