The OLC Memo on the Acting Attorney General
The memo is very thorough, and I’m almost convinced that the Whitaker appointment is legal. Here is my remaining constitutional question.
I’m still not clear on what the point of a recess appointment is if the President can simply make an “acting” appointment. One thought is there is some profound difference between being the “acting” somebody and the real somebody. In formal terms, though, I do not see why that is the case. Now you could also say that the “acting” appointment is more time-limited than a recess appointment. But that’s not true when, as in this case, we are near the end of a Congress.
My position is that Whitaker is lawfully the Acting Attorney General today, but that his appointment can only run until the end of this Congress. To say that a statute can grant an “acting” appointment beyond the duration of a recess appointment strikes me as wrong. If any of the examples cited in the memo actually did that, though, then I would have to reconsider my position.