Maryland Challenges the Appointment of Whitaker as Acting Attorney General

On November 13, 2018, Maryland Attorney General Brian E. Frosh filed a motion challenging the appointment of Matthew G. Whitaker as Acting Attorney General, as part of the state’s lawsuit, Maryland v. U.S. et al. The motion asks the court to declare that Deputy Attorney General Rod Rosenstein should be Acting Attorney General and represent the United States in this case.

Maryland v. U.S. et al. seeks to uphold the Affordable Care Act’s pre-existing conditions protections and other key provisions. Former Attorney General Jefferson B. Sessions certified to the Congress and chose not to defend the ACA in Texas v. United States. That certification was “a primary impetus” in Maryland v. U.S. et al. (Memorandum of Law in Support of Plaintiff’s Motion for Preliminary Injunction or Motion to Substitute, at 2.) On November 7, then-Attorney General Jefferson B. Sessions resigned at the request of President Trump, and the President announced by tweet that the U.S. Attorney General’s Chief of Staff, Matthew Whitaker, would assume the position of Acting Attorney General. A new Attorney General could change the Department of Justice’s legal position.

Attorney General Frosh argues that, as a matter of law, Deputy Attorney General Rod Rosenstein is the Acting Attorney General. The appointment of Whitaker as Acting Attorney General violates the Attorney General Succession Act, 28 U.S.C. § 508. “By statute, when there is no Attorney General, the Deputy Attorney General ‘may exercise all the duties of that office.’ 28 U.S.C. § 508(a).” (Mem., at 8.) Attorney General Frosh further argues that although the appointment is permitted under the Vacancies Reform Act, “the statutory framework, as informed by the history of statutory amendments, permits only one reading: The Attorney General Succession Act, 28 U.S.C. § 508, controls the vacancy created by former Attorney General Sessions’ resignation, and cannot be overridden by President Trump under the Vacancies Reform Act, 5 U.S.C. § 3345(a)(3).” (Mem., at 22.) Additionally, the appointment violates the Appointments Clause of the Constitution, U.S. Const. art. II, § 2, cl. “The Constitution provides that—absent an exigency not present here—the responsibilities of a principal officer such as the Attorney General can be fulfilled only by a Senate-confirmed official whose own duties include serving in the acting capacity.” (Mem., at 8.)

The Department of Justice on November 14, 2018, defended the appointment of Matt Whitaker to serve as Acting Attorney General in its 20-page opinion. The Department of Justice states that the appointment is authorized by the Vacancies Reform Act. “The Vacancies Reform Act remains available to the President even though 28 U.S.C. § 508 separately authorizes the Deputy Attorney General and certain other officials to act as Attorney General in the case of a vacancy.” (Opinion, at 4.) It further states that the Acting Attorney General is not a “principal officer” and does not need to be confirmed by the Senate.

Stay tuned to observe how the motion proceeds.