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Whitaker appointment dispute reaches Supreme Court

Since the moment President Donald Trump appointed Matthew Whitaker as Acting Attorney General on Wednesday, November 7, the move has been met with significant political and legal criticism, with numerous lawyers and commentators arguing that the president lacked both statutory and constitutional authority to name Whitaker—previously chief of staff to Attorney General Jeff Sessions—as Sessions’ interim successor. That argument may soon receive a conclusive resolution, thanks to an unusual motion filed in the Supreme Court late on Friday afternoon.

The movant, Barry Michaels, brought suit in March of 2016 against the attorney general and another senior government official seeking to challenge the constitutionality of the federal ban on possession of firearms by convicted felons. After losing in the lower courts, Michaels filed a petition for certiorari on June 27, in which the solicitor general’s response is currently due on December 17. But in a filing late Friday afternoon, Michaels—who is represented by Florida lawyer Michael Zapin and a team of lawyers from Goldstein & Russell, P.C., led by SCOTUSblog founder Tom Goldstein—moved the justices to “substitute” the appropriate successor to Sessions, who was one of the respondents to Michaels’ petition.

As the motion explains, the court’s rules usually provide for automatic succession of government-officer parties upon the prior officeholder’s departure. But “that practice is premised on the ability of this Court to identify the correct successor, so that any judgment or Order of the Court is directed to the correct individual.” Here, however, the dispute over the validity of Whitaker’s appointment means that “the identity of the successor is both contested and has important implications for the administration of justice nationally. This Motion seeks to resolve the dispute.” Michaels’ motion argues that the dispute ought to be resolved against the validity of Whitaker’s appointment—largely on the ground that the Federal Vacancies Reform Act of 1998 does not override or otherwise displace the mandatory order of succession set forth in the Department of Justice succession statute, codified at 28 U.S.C. § 508. And even if it did, the motion argues, the appointments clause of Article II of the Constitution does not allow for officials who have not been confirmed by the Senate to exercise the functions of a principal office, like the attorney general, on a temporary basis so long as no exigency precludes another, Senate-confirmed officer from doing so.

The motion concedes that “no characteristic of this case distinguishes it from any other in which Mr. Sessions was a named party” and that no lower court has yet addressed the issue. Nevertheless, the motion urges the justices to resolve the issue now because “[t]here is a significant national interest in avoiding the prospect that every district and immigration judge in the nation could, in relatively short order, be presented with the controversy over which person to substitute as Acting Attorney General.”

The justices have repeatedly reasserted that the Supreme Court is one of “review, not of first view.” Other challenges to the validity of Whitaker’s appointment have already been brought in contexts in which the acting attorney general is more than just a named party. And the U.S. Court of Appeals for the District of Columbia Circuit has ordered supplemental briefing as part of a challenge to the validity of Special Counsel Robert Mueller’s appointment and investigation as to whether the identity of Mueller’s current supervisor bears on the matter—and, if so, who it is. This issue therefore seems likely to reach the Supreme Court eventually. But the Michaels motion asks the justices whether they really want to wait that long. If they do not, then formally identifying the proper respondent to a petition for certiorari would certainly allow them to settle the matter once and for all.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner on this motion. The author of this post is not affiliated with the firm.]

Recommended Citation: Steve Vladeck, Whitaker appointment dispute reaches Supreme Court, SCOTUSblog (Nov. 17, 2018, 10:28 AM),