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.

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2 Responses

  1. Mike Stern says:

    Well, a recess appointment would last until the end of the next session of the Senate (ie, as long as Jan 3, 2020 unless the Senate adjourns sine die before then). I haven’t looked at the OLC memo carefully, but I think Will Baude summarized the competing arguments on the constitutional issue pretty well.

  2. dht says:

    An acting AG (or any other office) is someone who is the next in line, and will revert to their previous position once a new person is named and confirmed. A recess appointment is a new person named to a position at a time when Congress is not in session, and therefore can serve without confirmation. Whitaker should not be the acting AG, because he is not next in line.