Insights

Democrats launch lawsuit challenging the President’s appointment of Matthew Whitaker

Monday, December 10, 2018

Chris Gober of The Gober Group appears on Fox News: To discuss lawsuit challenging the President’s appointment of Matthew Whitaker

 

 

 

The Democrats’ new lawsuit that alleges President Trump’s appointment of Matthew Whitaker as Acting AG violates the Constitution’s “Appointments Clause,” which requires senior government officials to be confirmed by the U.S. Senate. While most people are focused on the politics of this appointment and how it impacts the Mueller investigation, the legal question at issue in this case is interesting because it pits (i) checks and balances/limits on Executive Power versus (ii) efficiency and practicality. For centuries (just a few years after our Nation’s founding), temporary replacements like Whitaker have been considered “inferior officers” who don’t require Senate approval (meaning Whitaker’s appointment is consistent with the longstanding norm); however, conservative Justice Clarence Thomas has indicated that this practice should not be the norm.