The Appointments Clause and the acting AG

What are the implications of the Constitution’s Appointments Clause for the tenure of acting attorney general Matthew Whitaker? Thomas Berry, recently a legal associate at the Cato Institute and now at the Pacific Legal Foundation, takes up the question in the Yale Journal of Regulation. More: Michael Rappaport; and earlier at Overlawyered on other Appointments Clause controversies.


  • What am I missing? Doesn’t the President have the right to give people in the Executive Branch whatever duties he wants to give them? Obviously, there are some duties that are statutorily attached to a person, and those probably cannot be delegated away from the particular person, but supervision over independent counsel seems to be something the President could delegate freely.

  • Even though it is an Executive branch agency, the Department of Justice is a Legislatively created agency, not mentioned in the Constitution. As such, its operation has to conform with the enabling legislation, as amended. If (and I’m not weighing in on the answer to that “if”) the law doesn’t allow a non-confirmed person to be acting Attorney General then Trump can’t appoint Whitaker to that post.

    This matters because the law allowing Special Counsels states:
    “The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General.”

    So if there is to be any meaningful action over the special counsel’s activities, it has to be by a lawfully appointed Attorney General.

    • Who is to say that that portion of the Special Counsel law is constitutional? And the issue isn’t necessarily removal, but supervision. Also, I am not sure that the fact that DoJ is a creature of legislation means that the President’s authority is hamstrung.

      Mueller’s actions in the Flynn case should appall anyone who believes that the machinery of justice should not be used as a political weapon. Mueller’s actions in that case make everything he has done suspect. The only real collusion, it seems to me, is that of the Clinton campaign, Russians who fed bogus dossier info, and the Obama Administration.

  • “This matters because the law allowing Special Counsels states:”

    Then it doesn’t matter at all, because there is currently no law allowing special counsels.

    The Independent Counsel Act had a built in sunset clause. It was re-authorized by Congress once, allowed to lapse in 1992, re-enacted in 1994, then allowed to lapse in 1999 and has not been re-enacted since.

    The appointment of Special Counsels is currently done under internal DOJ regulations written by then AG Janet Reno after the Independent Counsel Act lapsed in 1999.