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Why Trump could face legal challenges over Whitaker

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posted on Nov, 9 2018 @ 12:58 AM
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Supreme Court Justice Clarence Thomas would almost certainly agree. In a 2017 concurring opinion, Thomas declared that the president may never appoint a principal officer without Senate confirmation, even to fill a vacancy for a limited period. The fact that an appointment is temporary, or that the appointee serves in an “acting” capacity, “does not change the analysis,” Thomas wrote. “I do not think the structural protections of the Appointments Clause can be avoided based on such trivial distinctions.”
slate.com...

Case closed




posted on Nov, 9 2018 @ 01:02 AM
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Here's more...





Trump appointed Whitaker under the Federal Vacancy Reform Act, which allows him to serve for 210 days, or longer if a replacement is awaiting Senate confirmation when the term expires.

But as Thomas wrote in 2017, the president cannot use the FVRA to make an “end-run around the Appointments Clause.” Any federal criminal defendant can sue to block his prosecution, citing Thomas’ logic to argue that Whitaker is exercising his powers unlawfully. This theory may appeal to conservative judges who’ve long opposed the modern trend of presidents sidestepping the Senate’s advice and consent function.



posted on Nov, 9 2018 @ 01:30 AM
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a reply to: Willtell

It's not "case closed". The case hasn't even opened yet. I've said several times that I think the VRA will need to be interpreted in the light of the 1953 law as it pertains to presently confirmed candidates in the line of succession, but you have the opinion of one justice who is addressing an issue that wasn't directly before the court in that case.

Do I think the ruling will eventually be generally in line with Thomas's argument? Yes. Is that a guarantee or perfectly clear? No. Will the court strike part or all of the VRA? Possibly. Will the court decide this was bad faith and invalidate everything Whitaker takes action in his role? Almost definitely not, unless you can prove bad faith in the face of a law in which Congress handed over the power explicitly.



posted on Nov, 9 2018 @ 01:51 AM
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a reply to: RadioRobert

You might find this interesting, it's a LONG read, and it's what people keep quoting Thomas on. Funny story, what they are quoting him on actually doesn't support their case. it's a matter of out-of-context quoting, and the opinion of the SCOTUS per this piece is the President does indeed have the authority to appoint temporary persons to an office without consent of congress.

What they keep quoting is actually Thomas' opinion of Obama trying to make a temporary appointment permanent. That is what Justice Thomas seems to be referring to in the stated quote. His quote is a concurrence of the opinion of the court in that specific matter, wherein the court states the President has the authority to appoint 'acting members' to PAS positions, however it clarifies the writings of congress regarding restrictions and actions of the President appointing 'acting members'. Thomas' opinion is that of being the FVRA is not a means to appoint a permanent select member requiring PAS.

At least that's how I've read it so far, feel free to correct me if my interpretation seems off.
Scotus opinion



posted on Nov, 9 2018 @ 03:06 AM
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a reply to: Vector99

I've read it. Thomas says (and I tend to agree) that while the Senate can cede authority to appoint an acting (temp) official out of the line of succession, he thinks the principal officers nominated still has to have be subject to the Appointments clause. He rejects the three years term of Solomon at the NLRB as temporary (and admits Eaton provided for temporary appointment without confirmation from the Senate). BUT neither issue was before the court and was unnecessary (irrelevant) in the case that was placed before them. Solomon was neither temporary in his opinion nor did the VRA permit his acting as temp head while a nominee. Trying to pretend Solomon was temporary while also nominating him is prohibited by the VRA itself. Using the VRA to let Solomon undertake a principal office before undergoing confirmation is the "end around".

He concludes his support by saying, "Courts will inevitably be called upon to determine whether the Constitution permits the appointment of principal officers pursuant to the FVRA without Senate confirmation." But admits it is not before the Court at that moment. They didn't have jurisdiction to rule on a provision not before the court.
He is anticipating an administration saying they can use VRA to appoint someone directly without facing the Senate because they ceded the power to the Executive.
What is somewhat ambiguous (because it also was not before the court) is whether a temporary assignment also constitutes an end run around the Constitution in his opinion. That he cites Eaton suggests he does no see temporary "acting" assignment as likewise forbidden, but it is not at all clearly stated in the text.


Thomas says it doesn't even matter if the VRA had not proscribed his status as both temporary and acting. He would still be bound to be confirmed once he was nominated for a permanent position, and that Constitutionally the Senate cannot violate the Appointments clause and handover that power anymore than the Executive could take it. Again, he cites Eaton not being applicable for Solomon because he wasn't temporary or "acting" in his opinion. That suggests he thinks Eaton is settled regarding temporary assignment of officials.

So, ultimately, this would be a unique challenge. That's why I keep saying it wasn't equivalent circumstances. He clearly says he rejects the argument that Solomon was temporary. So he doesn't opine directly on this situation because it wasn't applicable to that case. It's not apples to apples.

You're back to a challenge that the VRA itself is unconstitutional in this speciric case or when it provides for senior officials to become "acting" heads if they are not in the 1953 line of succession (or in other words, already presently confirmed by the Senate in another role).
edit on 9-11-2018 by RadioRobert because: (no reason given)



posted on Nov, 9 2018 @ 04:18 AM
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a reply to: RadioRobert

I see what you're saying, his opinion seemed a bit unclear, I re-read and noticed the bit about non-inferior employees, which makes it even more confusing in my opinion. It seems he concurs with the premise of the courts opinion, but offers further opinion of appointment of non-inferior officers.

What confuses me, is Chief Justice Roberts seems to offer the courts opinion of the validity of the FVRA and temporary appointment clause, even going as far as to cite several cases of such a thing. Included in those references, is an example of such an occurrence in Washington's first term. In my opinion it is hard to argue the constitution strictly forbids it under any circumstance when one of the people that participated in the creation of the US constitution apparently violated it in his first term. Because of that, I would think it would be difficult to interpret the constitutionality as intended by the founders to be other than the direct actions of said founders of the constitution.

That's simply my opinion, and that carries about as much weight as a feather in space. It definitely will be interesting to see where it goes.



posted on Nov, 9 2018 @ 06:12 AM
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a reply to: xuenchen

Blowing smoke as usual.

What legal authority do you refer? His Mandate, or his Will ?



posted on Nov, 9 2018 @ 07:26 AM
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a reply to: Vector99

The temporarily appointing an "acting" head of Department has always been a thing. It has been consistently upheld. The question is what constraints and privileges can Congress place on the Executive regarding it. Does the acting head have to be holding a current role which is confirmed (PAS)? Many times in history the answer is no. BUT it hasn't happened for AG since the 1953 law concerning AG succession. AND just as importantly, the VRA grants this power explicitly. Is the VRA unconstitutional in this aspect? Even for a temporary position? Maybe. We don't know. It has never come before the court before. Eaton involves another PAS officer's replacing as temporary acting "vice-consul". It is possible to argue that just because it (appointing a nonPA officer as a acting principal PAS officer) has happened before doesn't mean it is Constitutional. The AG succession act only lists principal officers of the DOJ as automatic succesors. The VRA grants additional powers to the President to choose someone out of order there (has happened recently before regarding DOJ) and makes an exception for other senior employees not on that PAS list (has not happened for AG since 1953 law) Can one or both of these VRA powers be stricken? It's possible.
edit on 9-11-2018 by RadioRobert because: (no reason given)



posted on Nov, 9 2018 @ 07:35 AM
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a reply to: xuenchen

You always say stuff like that like trump is some kind of omnipresent king who can just do whatever the hell he likes.
He does too and he and you are wrong.
He cannot just appoint this guy and call it good.
I'm even willing to bet that he does not become the AG. Because he will certainly have to be confirmed and I seriously doubt that is going to happen and if he did by some miracle he would have to recuse himself because he has publicly made biased statements regarding the Muller investigation.
Oh look trump ... lose lose again.
edit on 1192018 by Sillyolme because: (no reason given)



posted on Nov, 9 2018 @ 07:45 AM
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a reply to: Lumenari




He can put anyone he wants in until he fills the vacancy.


You seem awfully sure of that. Personally I've never been down this particular road before.
Every day is a civics lesson with trump in office.



posted on Nov, 9 2018 @ 09:26 AM
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originally posted by: Sillyolme
a reply to: xuenchen


I'm even willing to bet that he does not become the AG.


Of course he won't. He won't be nominated. He can be "assigned" as the "acting" AG, though, by virtue of the VRA until a federal court says otherwise by issuing a ruling or stay. For 210 days, and the clock restarts if his actual nominee is rejected by the Senate. His assignment to acting AG disqualifies him from becoming the nominee. Whether the AG succession act supersedes the VRA is the legal question the courts will be asked to make.





if he did by some miracle he would have to recuse himself because he has publicly made biased statements regarding the Muller investigation.


The same way all the Congresscritters with D's by their names are going to recuse themselves from congressional investigations on account they have offered public opinions? *rolleyes*



loose loose again.


Sillyolme: The College Years



posted on Nov, 9 2018 @ 09:31 AM
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a reply to: Sillyolme




Oh look trump ... loose loose again.

That is funny on far too many levels!




loose loose again.




Sillyolme: The College Years

very well played!
A tip of the cap to you!



posted on Nov, 9 2018 @ 09:33 AM
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a reply to: RadioRobert




Sillyolme: The College Years



Thanks. I know you weren't making fun of me. Because everyone makes mistakes.
My big problem is I type fast and I dont have a strong thumb and my spacing is off.
But that was the wrong spelling so thanks. I also get confused with effect and affect.
But I got all the to, too, twos down. LOL
edit on 1192018 by Sillyolme because: (no reason given)



posted on Nov, 9 2018 @ 09:35 AM
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edit on 1192018 by Sillyolme because: (no reason given)



posted on Nov, 9 2018 @ 09:36 AM
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originally posted by: Sillyolme
a reply to: Lumenari




He can put anyone he wants in until he fills the vacancy.


You seem awfully sure of that. Personally I've never been down this particular road before.
Every day is a civics lesson with trump in office.


He absolutely can NOT put anyone he wants as acting AG. That's settled. He can nominate anyone he wants to face Senate confirmation. The people he can assign as "acting" as enabled by the Senate (ie the Senate says he/she does not need to be confirmed as AG to hold the temporary position) until then are listed or described under the VRA. The question is if the portions of that law which qualify Whitaker (senior official without holding a current principal PAS office) will be upheld in the case of replacing a principle officer. The law passed in 1998 says yes, unequivocally. It gives away that power to the Executive branch. But it's never been challenged.
I think there are reasonable arguments to make from both sides. It isn't cut and dry by any means. That's why it's interesting. Anyone that says they know what the court will rule is duping you.
edit on 9-11-2018 by RadioRobert because: (no reason given)



posted on Nov, 9 2018 @ 09:38 AM
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originally posted by: Sillyolme
a reply to: shooterbrody

And so very low too.
How nice of you to play along. You who also never make mistakes.

Coming from she who has no sense of humor, I am surprised you are familiar with the phrase "to play along".
The only thing "so very low" here comes from you.
No big surprise there.

Oops
got it before your stealth edit....
nice try tho...


edit on 9/11/2018 by shooterbrody because: (no reason given)



posted on Nov, 9 2018 @ 09:38 AM
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a reply to: Sillyolme

You have my permission to make fun of my mistakes, too. I have a sense of humour.



posted on Nov, 9 2018 @ 09:41 AM
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a reply to: RadioRobert

Thanks.



posted on Nov, 9 2018 @ 09:43 AM
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a reply to: RadioRobert




posted on Nov, 9 2018 @ 10:04 AM
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a reply to: Sillyolme

The law is on Trump's side on this one.

Sorry.

😬



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