November 27, 2018

Prominent National Constitutional Scholars File Brief Calling President Trump’s Appointment of Matt Whitaker as Acting Attorney General “Unconstitutional”

Washington, D.C. — Seven of the nation’s most distinguished constitutional scholars yesterday questioned the constitutionality of Matt Whitaker’s appointment as Acting Attorney General, arguing that the position must be filled by someone who was confirmed by the Senate.

The scholars—Erwin Chemerinsky, Jon D. Michaels, Alan B. Morrison, Victoria Nourse, Peter M. Shane, Jed Handelsman Shugerman, and Laurence H. Tribe (full list below)— assert that in appointing Whitaker “the President baldly bypassed the advice and consent of the Senate to unilaterally install a government employee, whose name had never been sent to the Senate, let alone approved by it, to a principal constitutional office.”

The brief further states that “[e]ver since the Attorney General first became the head of the Department of Justice in 1870, the order of succession to act as Attorney General in the event of a vacancy has been specifically provided by statute; and the statute directs the Deputy Attorney General—who has been confirmed by the Senate in part as a constitutional understudy—to fill the office.”

The brief was filed in District Court in the case of State of Maryland v. United States of America and asks the Court to adopt Maryland’s statutory interpretation that the Attorney General Succession Act should govern the appointment of an Acting Attorney General, not the Vacancies Reform Act, as the Trump administration contends.

The authors conclude that “[t]he Court should presume that Congress did not intend to create a succession plan that enables the President to avoid the bedrock constitutional requirement of advice and consent for appointments to an office as important as that of the Attorney General….”

The amicus brief was signed by:

  • Erwin Chemerinsky – Dean and Jesse H. Choper Distinguished Professor of Law, The University of California, Berkeley, School of Law
  • Jon D. Michaels – Professor of Law, UCLA School of Law
  • Alan B. Morrison – Lerner Family Associate Dean for Public Interest and Public Service Law, The George Washington University Law School
  • Victoria Nourse – Professor of Law, Georgetown University Law Center
  • Peter M. Shane – Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University Moritz College of Law
  • Jed Handelsman Shugerman – Professor of Law, Fordham University School of Law
  • Laurence H. Tribe – Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School