Initial Reactions to OLC’s Opinion on the Whitaker Designation as “Acting” Attorney General

Here are some very preliminary reactions to Wednesday’s Office of Legal Counsel (OLC) opinion, in which Assistant Attorney General Steve Engel explains OLC’s pre-decisional advice to the President that he could lawfully designate the Chief of Staff to the Attorney General, Matthew Whitaker, to perform the functions and duties of the Office of Attorney General during the vacancy in that office that exists by virtue of Jeff Sessions’s resignation last Wednesday.

In sum, our tentative views are these:

1. OLC’s analysis is serious and very professional—not at all “laughable”;

2. The two questions the opinion addresses—one statutory, the other constitutional—are genuinely difficult;

3. OLC’s conclusion that the Vacancies Reform Act of 1998 authorizes the Whitaker designation is possibly (but not certainly) correct, primarily because of an unexplained oddity of the 1998 Act, but there are serious counterarguments, too, some of which OLC doesn’t address;

4.  If Whitaker now holds an “office” within the meaning of the Appointments Clause (an unresolved question the opinion does not purport to answer), OLC has not adequately explained why Trump’s designation of Whitaker would be consistent with that Clause and, in particular, why the Supreme Court’s decision in U.S. v. Eaton (1898) does not undermine rather than support the President’s designation here;

and therefore, at the very least,

5. The “constitutional avoidance” canon may counsel in favor of a reading of the VRA that preserves the primacy of the AG Succession statute, pursuant to which Deputy Attorney General Rosenstein would perform the AG’s functions during the vacancy (however long it might last).

The Vacancies Act and the AG “Succession” Statute

Although the statutory question here is quite complicated and difficult, we’ll try to be relatively brief about our initial take on OLC’s treatment of it.

OLC concludes that Congress has given the President two alternative options for filling the Sessions vacancy:

OPTION 1:  If the President did nothing, then Deputy AG (“DAG”) Rod Rosenstein would perform the AG’s functions, as the AG-specific Succession Act, 28 U.S.C. 508(a), prescribes.  OLC doesn’t deny that that would have been the only possibility before 1998–and that it would reflect the unbroken DOJ practice between the Department’s creation in 1870 and at least 2007, pursuant to which the second-most-senior Senate-confirmed officer at DOJ (the Solicitor General until 1953, the DAG thereafter (and the head of the Civil Division in the first weeks of the Clinton Administration when he was the highest-ranking PAS officer at DOJ) performed the AG’s functions during vacancies.

OPTION 2:  According to OLC, however, in 1998 Congress dramatically changed the law that had been applicable to AG vacancies for the preceding 130 years, by giving the President the option of assigning the extensive and awesome powers of the office to someone else, including to any DOJ employee, such as Whitaker, who’s served at DOJ for at least 90 days in the preceding year and whose salary is at least equal to the rate of pay at level GS–15 of the General Schedule, even though such a person has not been Senate-confirmed to a DOJ office.

As we see it, the strongest arguments in support of OLC’s statutory reading are these:

(i) Although Section 3347(a) of the VRA by its terms recognizes that a statute such as the AG Succession Act is an exception to the VRA’s exclusivity, it does not foreclose the VRA’s possible applicability, as an alternative to such an office-specific succession statute;

(ii) There’s nothing in post-1998 law indicating that Congress intended to make Section 508 the exclusive means of dealing with AG vacancies;

and, perhaps most importantly,

(iii) Although the Senate-passed version of the VRA in 1998 would have expressly retained the exclusivity of Section 508 for purposes of AG vacancies, the VRA conference committee inexplicably, and without explanation, omitted the AG exception from the final, enacted version of the VRA (see the OLC opinion at p.5 & n.5), thereby (arguably) creating a sea change in the rules that had applied to AG vacancies since 1870.

[UPDATE:  OLC also invokes (p.4) two of its previous opinions in which it relied upon a sentence in what OLC calls  “the Senate Committee Report accompanying the [Vacancies Reform] Act.”  As one of us explained a year ago, however, that sentence from the Senate Report doesn’t support OLC’s argument for several reasons, including that the Report did not “accompany” the Act–it was written in connection with an earlier, different Senate version (a version that would have expressly precluded application of the VRA to the office of Attorney General!).  OLC wisely does not place much reliance on the Senate Report in its new opinion.]

The strongest counterarguments, in our view, are these five, the second and fourth of which former OLC Deputy AAG John Bies first floated in this July 2017 post:

(i) As the State of Maryland emphasizes in its brief challenging Whitaker’s designation (Judge Hollander has scheduled oral  argument on that question for December 19), if the 1998 Congress truly did what OLC claims, it would, indeed, constitute a sea change from the rules the legislature had prescribed for the preceding 130 years—a system that worked well and to which no one (as far as we know) ever publicly objected.  And as Justice Scalia was wont to say, “Congress … does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”

(ii) Section 508(a) provides—without any mention of the President—that “[i]n case of a vacancy in the office of Attorney General, . . . the Deputy Attorney General may exercise all the duties of that office.”  OLC’s reading of the VRA thus creates the anomaly whereby the President’s VRA designee (here, Whitaker) and the Deputy AG are simultaneously authorized to perform the AG’s duties.  (It’s obviously unlikely any DAG—removable by the President—would actually assert his authority to do so in such a case; but the point is that OLC’s reading leaves open that possibility—something Congress presumably would have precluded had it actually intended to afford the President the option of using either mechanism.)  The OLC opinion does not address this anomaly.

(iii) Moreover, as a friend emphasized to us yesterday, in a Department such as DOJ, OLC’s reading creates another anomaly—one that is in fact currently occurring at the Department of Justice:  A mere agency employee, never considered by the Senate, now has supervisory authority over many Senate-confirmed officers (the DAG, the SG, the head of OLC, other Assistant Attorneys General, all confirmed U.S. Attorneys, etc.) with respect to many of the Executive’s most sensitive operations.  Can Congress really have intended such a counterintuitive and, frankly, bizarre situation?  The OLC opinion doesn’t address this question, either.

(iv) Section 508 further provides that in a case where there’s no Senate-confirmed Deputy AG in office, the Associate Attorney General (assuming there is such an officer in place, unlike today, where there’s not) “shall” perform the AG’s duties.  (Moreover, even though subsection (a) says only that the Deputy AG “may” perform such duties, it might be fair to read that provision, too, to impose an obligation on the DAG (i.e., that Congress didn’t mean to suggest the DAG could decline to fill in),  As one of us wrote previously with respect to a similar provision in the statute governing a vacancy in the Office of CFPB Director, Congress’s use of the mandatory “shall” might fairly be understood to at least create a presumption of congressional intent that Section 508 supersedes the permissive provisions of the VRA, which provide the President “may direct” certain individuals to perform such functions.  DOJ has, however, contested that view, and one district court accepted its argument (see pp. 22-23) that “shall” in the CFPB statute does not reflect a congressional intent to require application of the agency-specific statute rather than the VRA.

[UPDATE (slightly edited):  The OLC opinion itself, at page 13, points to a Nineteenth Century legislative development that might shed important light on this question:

After Congress enacted the Vacancies Act of 1868, and then the first AG succession provision in 1870, the juxtaposition of the two laws raised a question virtually identical to the one here–namely, whether the more specific AG statute, which specified that the Solicitor General “shall” be the acting AG in the case of a vacancy, either superseded or merely supplemented the discretionary authority the more general Vacancies Act gave the President to appoint any PAS officer in the Executive branch to fill vacancies.

As it happens, at that time an effort was underway, pursuant to congressional directive, to compile and reconcile all existing U.S. statutes.  In the first such codification, in 1873, the Revised Statutes reconciled the two vacancies provisions in this way:  Section 179 provided that “[i]n any of the cases mentioned in the two preceding sections [describing the covered types of vacancies], except the death, resignation, absence, or sickness of the Attorney-General, the President may, in his discretion, authorize and direct the head of any other Department or any other officer in either Department whose appointment is vested in the President, by and with the advice and consent of the Senate, to perform the duties of the vacant office until a successor is appointed, or the sickness or absence of the incumbent shall cease.”

The official revised version of the federal code, in other words, reconciled the two enactments by specifying that the Vacancies Act did not give the President authority to deviate from the AG Succession provision.  And Congress itself then codified the published Revised Statues as the official U.S law, specifying that they constituted “legal evidence of the laws and treaties therein contained” (Act of June 20, 1874, ch. 333, 18 Stat. 113).  See U.S. Nat. Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 449 n.4 (1993) (“The 1874 edition of the Revised Statutes marked the last time Congress codified United States laws by reenacting all of them.”).  Indeed, Section 5596 of the Revised Statutes themselves provided that all prior federal statutes passed before December 1, 1873 that were covered by the revision were thereby repealed.

That’s why OLC, at page 13 of its opinion, says that Congress itelf reconciled the two acts in 1873.  What OLC doesn’t mention is that the 1873 reconciliation pointed in exactly the opposite direction of OLC’s current reading of the two vacancies statutes:  Faced with virtually the exact same question presented by the 1868 and 1870 acts, the codifiers read the word “shall” in the AG-specific statute to supersede–not merely supplement–the general authority that the Vacancies Act conferred on the President.  (In its later recodification in 1966, Congress again expressly ratified that the Vacancies Act doesn’t apply to vacancies in the office of Attorney General.)  This historical data point tends, if anything, to undermine OLC’s view about how best to reconcile the two current vacancies provisions, which take similar forms to those enacted in 1868 and 1870.]

(v) Finally, and as the Maryland brief also emphasizes, OLC’s reading of the VRA would require resolution of the difficult Appointments Clause question we discuss below, whereas reading Section 508 to be exclusive (or at least to be applicable where possible) with respect to Attorney General vacancies would avoid the serious constitutional doubts in those cases where a President might use the VRA to designate someone other than a Senate-confirmed officer in the same agency to perform the AG’s duties.

The Appointments Clause Question

OLC’s analysis of the Article II question is very rich and thorough.  OLC makes a strong case that the Appointments Clause does not impose a categorical rule that a President may never assign a non-Senate-confirmed person to perform the functions of a principal officer such as the Attorney General when that office is vacant.  Even so, the opinion never quite engages forthrightly with the characteristics that make this particular assignment so potentially problematic under the Constitution.

The gist of the Appointments Clause argument against Whitaker’s assignment is that the Office of the Attorney General is a “principal,” rather than an “inferior,” office (that’s undisputed), and that therefore the Appointments Clause (Article II, Section 2, Clause 2) requires that someone can hold that office, even on a “temporary” basis, only if the President appoints him to it by and with the advice and consent of the Senate.  Because the Senate hasn’t confirmed Whitaker to be AG, or “Acting” AG, goes the argument, Trump’s designation of him to perform the AG’s duties and functions is unconstitutional, even if the VRA authorizes it.

In order to put this question in context, it’s important to keep in mind a couple of things that distinguish the Whitaker assignment from the usual presidential practice of filling “principal” officer vacancies:

To begin with, in the vast majority of historical cases in which someone has stepped in to perform the functions of a “vacant” office of the head of a department, that “acting” official has been someone holding another office in that same department—usually a “deputy” or “first assistant”—whom the Senate has already confirmed for that underlying office.  In such cases, the Supreme Court has reasoned that the Senate is deemed to have already in effect approved that person’s authority to step into the principal’s shoes during vacancies:  The prospect of such an “acting” role is part of the duties of the office for which the person was confirmed—or at least those duties are said to be “germane” to the confirmed office.  From an Appointments Clause perspective, therefore, it doesn’t matter how the person was assigned to perform the functions of the higher office (although of course the assignment must be consistent with any relevant statutes).  (Shoemaker and Weiss are the leading cases on this point.)  In other words, where the “acting” officer is someone who was appointed by the President by and with the advice and consent of the Senate (colloquially known as a “PAS” appointee) to another office in the same agency, there’s no Appointments Clause issue at all.  That scenario accounts for mine run of cases.  But not this one.

Second, the Whitaker case deviates from this historical norm in another respect, as well–namely, that the President himself caused the vacancy: he gave Sessions an ultimatum of resigning or being removed.  Of course, in and of itself that’s hardly unheard of:  Jeff Sessions isn’t the first cabinet official to be forced out by a President.  What is very rare, however, is that although the President reportedly planned to rid himself of Sessions many months ago, he did not announce a nomination of a replacement for the Senate’s consideration when he created the vacancy.  We can’t say for certain that that’s never happened before with respect to the head of a department; but if has, it’s very rare.  (We’re aware of one partial analogy, but presumably it’s not one Trump would eagerly cite as a precedent:  After the Saturday Night Massacre in late October 1973, it took President Nixon 13 days to announce his intent to nominate William Saxbe to replace Elliot Richardson.  (The formal nomination came a few weeks later.)  But Nixon, of course—in contrast to Trump—had no inkling in advance that he’d be forcing Richardson to resign and therefore had no reason to be thinking about who the next Attorney General might be.  Moreover, it’s very unlikely that Trump will announce a new AG nominee within the next week, which is what it would take to make the Saxbe precedent analogous.)

Now, as for OLC’s constitutional analysis:

The OLC memo rightly emphasizes several historical backdrops:

— that before enactment of the Vacancies Act of 1868, Congress enacted a series of statutes that authorized the President to choose persons other than PAS (i.e., Senate-confirmed) officers from the same department to perform the functions of a principal officer in the event of a vacancy (or a disability of the officer);

— that Presidents exercised such authority over 100 times before Congress enacted the Vacancies Act of 1868;

— and that, in particular, Presidents on at least three occasions assigned others—two confirmed cabinet heads and one non-confirmed assistant to the AG—to perform the functions of the Attorney General’s office after AG resignations, even though there wasn’t even any statutory basis for such assignments and even though the Senate hadn’t had an opportunity to consider whether those three persons should be eligible to be assigned such authorities.

This pre-1868 practice has not been the norm with respect to vacancies in the office of a department head for the past 150 years.  Even so, that early practice—seemingly okayed by the Second Congress and almost never questioned on constitutional grounds for over 75 years—must surely have some bearing on the Article II question.

There are two possible theories that can explain the early enactments and practice.

1. First, our sense is that many (perhaps most) actors in the political branches early in the Nation’s history thought that the assignment of such functions to someone on an “interim” basis—even the significant functions of a cabinet official—did not necessarily make the assignee a constitutional officer at all, in which case the Appointments Clause would simply be inapposite. This argument is based on the idea that holding a constitutional “office” requires not only the performance of “significant authority pursuant to the laws of the United States” but also an assignment to a “continuing and permanent” position in the federal government.  Lucia v. SEC, 138 S. Ct. 2044, 2051 (2018); see also United States v. Hartwell, 73 U.S. at 393 (holding that a clerk held an office because, inter alia, “his compensation was fixed by law” and “[h]is duties were continuing and permanent, not occasional or temporary”).

As OLC itself explained in a major 2007 opinion (at p.112) on the meaning of “officer” under the Appointments Clause, although the temporary nature of an assignment does not categorically preclude the possibility that it amounts to holding an “office,” nevertheless in order to quality as an “office” “[t]he position should not be ‘transient’:  The less fleeting and more enduring it is (or is likely to be), the more likely it is to be a continuing seat of power and thus an office.”  See also id. at 77 (“for a position to be a federal office, it also must be ‘continuing,’ which means either that the position is permanent or that, even though temporary, it is not personal, ‘transient,’ or ‘incidental’”).  In other words, the person exercising the duties of an office does not necessarily “hold” that office if such exercise is merely “transient.”  Id. at 101 n.11.[1]

To some modern observers—especially those inclined to exaggerate the constraints of the Appointments Clause—this “transience” touchstone might appear to be a “trivial distinction[].”  NLRB v. SW General, Inc., 137 S. Ct. 929, 946 n.1 (2017) (Thomas, J., concurring).  We suspect, however, that it was much more commonly accepted earlier in our constitutional history than it might be today (concededly a topic for further research).  (At a minimum, we know it wasn’t universally accepted before 1868:  OLC cites an 1857 case, for instance (In re Boyle), in which the Court of Claims held that “the office of Secretary [of the Navy] ad interim is a distinct and independent office in itself” that had been held temporarily by the chief clerk of the Navy, and that the appointment was constitutional because the office was “inferior.”).

If this understanding is correct, then it’s possible that Matthew Whitaker is simply not holding an office to which the Appointments Clause applies at all.  That’s why he (presumably) isn’t receiving the salary that Congress has prescribed for the Attorney General, and why he (presumably) hasn’t received a presidential commission to any new “office,” something that Article II, section 3 of the Constitution requires for “all the Officers of the United States.”  (We’re not sure of these facts, of course.  It’d be interesting to learn from the government whether Whitaker is, in fact, collecting an AG’s salary or has received a presidential commission.)

Although yesterday’s OLC opinion doesn’t expressly rely upon this not-an-officer theory, it’s noteworthy that OLC does not disclaim, it either:  Indeed, the opinion subtly but distinctly signals (p.6) that it’s an open question whether Whitaker is holding an office to which the Appointments Clause applies:  “[I]t does not matter whether an acting official temporarily filling a vacant principal office is an inferior officer or not an ‘officer’ at all within the meaning of the Constitution, because Mr. Whitaker was appointed in a manner that satisfies the requirements for an inferior officer.”  See also id. at 14 (characterizing the Supreme Court’s decision in Eaton (discussed below) as “emphasiz[ing] that the temporary performance of a principal office is not the same as holding that office itself”).

The Justices on the modern Supreme Court, some of whom have a very robust view of the importance and scope of the Appointments Clause, might well be reluctant to adopt this argument.  Indeed, it wouldn’t be surprising if even DOJ doesn’t rely on it in the litigation challenging Whitaker’s appointment.  Our principal point here is merely that this then-common view of what it meant to hold an “office” may well explain why few observers saw any Appointments Clause problem with the pre-1868 statutes and practice.

2. Assuming, however, that a temporary assignee does occupy an Article II “office” by virtue of his or her assigned functions—e.g., in Whitaker’s case, what we might call the “Office of the Acting Attorney General,” although there’s no formal position with that name—there’s another possible Appointments Clause explanation for the early practice, as well, one that depends crucially upon the Supreme Court’s 1898 decision in United States v. Eaton, 169 U.S. 331.

In Eaton, the U.S. counsel to Siam (under the Appointments Clause the equivalent of a principal officer whose appointment required Senate approval)—acting pursuant to a regulation, and with the approval of the State Department—appointed Eaton, a vice-counsel (not a Senate-confirmed officer) to take charge of the consulate after Boyd’s departure.  Eaton served as “acting” U.S. counsel at Bangkok for ten months.  In resolving a later dispute about salary payments, the Court held that Eaton’s assignment as “acting” counsel didn’t violate the Appointments Clause even though the Senate hadn’t confirmed him.  It reasoned that because Eaton was “charged with the performance of the duty of the superior for a limited time and under special and temporary conditions, he is not thereby transformed into the superior and permanent official.”  To hold otherwise, the Court reasoned, “would render void any and every delegation of power to an inferior to perform under any circumstances or exigency the duties of a superior officer, and the discharge of administrative duties would be seriously hindered.”

In its opinion yesterday, OLC argues (pp. 14-15) that Eaton explains, or “confirm[s],” the extensive pre-1868 practice:  “In view of the long history of such appointments, Eaton simply confirmed the general rule.  It did not work any innovation in that practice.”  And that much seems correct—Eaton might be said to have established, and/or confirmed, a sort of “exigency” exception to the Appointments Clause, for circumstances in which someone is assigned to perform a principal officer’s duties “for a limited time and under special and temporary conditions,” lest the discharge of those duties “be seriously hindered.”

As the language of Eaton itself suggests, however, this exception isn’t unlimited:  The temporary assignment must be reasonably tailored to deal with the particular exigency that necessitates deviation from the ordinary Appointments Clause requirements.  So, for example, the OLC opinion appears to agree with Justice Thomas, who in the recent NLRB v. SW General case argued that the rationale of Eaton could not be used to justify an “acting” designation that had lasted more than three years “in an office limited by statute to a 4-year term.” 137 S. Ct. at 946 n.1.  Similarly, OLC approvingly cites one of its own opinions from 1977, in which it concluded that even though there wasn’t any “express statutory limit on the length” of the tenure of an “acting” OMB Director, “it may not continue indefinitely.  Within a reasonable time after the occurrence of a vacancy in the office of Director, the President should submit a nomination to the Senate.”  1 Op. O.L.C. at 289-290.

That is to say, OLC acknowledges that what we might call the Eaton exigency/”special and temporary conditions” “exception” requires that the “temporary” assignment be “reasonable,” which we think is best understood to mean that it must be at least reasonably tailored to the exigency that required disregarding the Appointments Clause requirements (including the possibility of assigning a Senate-confirmed officer within the agency to perform the Department Head’s duties).  That means, at a minimum—and as the Thomas concurrence and 1977 OLC opinion suggest—that if the President assigns the functions to someone who does not satisfy the Appointments Clause, the President must make reasonable efforts to have the vacancy filled expeditiously, by nominating a new officer for the Senate’s consideration.

Importantly, however, Eaton’s rationale does not merely depend upon the “limited time” of the assignment:  It also assumes there must be “special and temporary conditions” that warrant acting outside the Appointment Clause’s strictures—strictures that, as explained above, permit the assignment of the principal officer’s functions to another officer in the agency whom the Senate has confirmed in contemplation of the prospect of such a possible “acting” role.

OLC offers a couple of good examples of such exigent needs toward the end of its opinion (p.19):  At the beginning of an administration, for instance, there might not be any Senate-confirmed officers in the agency in question during the short period during which the Senate is considering the President’s nominee.  And even at other times, when a “vacancy in the top spot” arises in a small agency, there might be no officers in that agency whom the Senate has considered with such acting duties in mind.  That scenario likely describes most of the historical cases on which OLC relies, especially before 1868 (or, in any event, OLC doesn’t identify any cases in which the President chose lower-level officials rather than available Senate-confirmed officers in the agency)—and it certainly describes the three cases involving assignments to perform the Attorney General’s functions, all of which occurred when there was no Department of Justice nor even any other Senate-confirmed assistants to the Attorney General who might have been designated to fill the AG’s role.

These sorts of exigencies, however, are not present in the Whitaker case, as OLC acknowledges in the final substantive paragraph of its opinion:  “It is true,” writes Steve Engel, “that these concerns do not apply to the current circumstances of the Department of Justice, which is staffed by a number of Senate-confirmed officers.  Following Attorney General Sessions’s resignation, the President could have relied upon the Deputy Attorney General, the Solicitor General, or an Assistant Attorney General to serve as Acting Attorney General.”  Indeed, if Trump had simply done nothing, then DAG Rosenstein would have automatically stepped in to perform the AG’s functions, pursuant to the AG Succession statute, 28 U.S.C. 508(a).  That’s the course Presidents had always taken between 1870 and 2007, one that avoids any Appointments Clause concerns.  There appears to be no good reason (but somewhat obvious bad reasons) for President Trump to have deviated from that well-established practice now.

Moreover, regardless of who he assigned to perform the AG’s functions, President Trump knew in advance that he was himself going to create this vacancy, and thus he could have simultaneously nominated someone to replace Sessions, a reasonable step to ensure that the temporary assignment would persist no longer than necessary.  (Indeed, if Trump makes such a nomination very soon, most everyone will stop worrying much about Matthew Whitaker—the lion’s share of attention will then appropriately be refocused on the Senate’s consideration of the nominee.)

For these reasons, there wasn’t any exigency that required Trump to designate someone who isn’t a Senate-confirmed DOJ officer to perform the AG’s functions—no “special conditions” (Eaton) that warranted, let alone compelled, such a dramatic deviation from the historical norm.

OLC’s entire response to this argument of “no special conditions” is the following:  “But the availability of potential alternatives does not disable Congress from providing the President with discretion to designate other persons under section 3345(a)(3) of the Vacancies Reform Act.  Nothing in the text of the Constitution or historical practice suggests that the President may turn to an official who has not been confirmed by the Senate if, but only if, there is no appropriate Senate-confirmed official available.”

As we’ve explained, and as OLC’s own discussion of Eaton demonstrates, that’s simply not so.  The “historical practice” confirmed and sanctioned in Eaton consists almost entirely of cases in which the discharge of the duties of the office in question would have been “seriously hindered” but for the assignment of responsibility to someone other than an officer in the agency whom the Senate has confirmed.[2]  And more importantly, Eaton’s rationale suggests that such an exigency—some sort of “special conditions”—is a constitutional prerequisite to such an assignment.  The Whitaker designation appears to flunk that test.

_____________________________________

[1] Will Baude suggests that “as a matter of text and structure,” it appears that a President can’t name an “Acting” Attorney General without Senate confirmation because “[o]n any given day, the office of Attorney General is a ‘principal’ office, so it should require a principal appointment, one with Senate confirmation, to occupy that office even for a day.”  That conclusion may or may not be correct, but we aren’t convinced it follows naturally from the “text and structure” of the Appointments Clause itself–because it begs the question at hand, namely, whether the person temporarily performing the office’s functions “occupies” (or holds) that office.  Think, for example, of a school district that requires the superintendent to approve of a principal’s hiring of all teachers, but that also permits a school principal unilaterally to hire persons to fill in for such teachers in the event of an unexpected “vacancy,” e.g., illness, vacation or removal.  Of course we call such “transient” replacements “substitute teachers”–and we don’t usually think of them as occupying or holding a school “office” or position in the way we think of the “permanent” teachers–of holding the position of “teacher.”  They’re simply filling in, and that’s why it’d be unremarkable for the school board to prescribe a different, somewhat less formal and less trustworthy manner of hiring them (i.e., without the approval of the superintendent) than it does for “permanent” teachers.

[2] In footnote 15 of its opinion, OLC cites nine recent cases—seven of them in the past two years—in which the President has designated non-Senate-confirmed officials to serve as “acting” agency heads.  OLC does not specify whether any Senate-confirmed officers were available in the relevant agencies in some or all of those cases.  To the extent there were, however, those cases, too, may have raised questions about whether the choice of others was a reasonable response to an exigency.  (We’re aware of at least one case that may fall within that category:  When Augustine Smythe, a non-Senate-confirmed OMB Executive Associate Director, served as Acting OMB Director for a couple of weeks in late June 2003, John Graham was the Senate-confirmed OIRA administrator, but it appears that he was passed over.)

  

About the Author(s)

Walter Dellinger

Walter Dellinger is a partner at the law firm of O’Melveny & Myers and the Douglas Maggs Emeritus Professor of Law at Duke University. He was Assistant Attorney General and head of the Office of Legal Counsel from 1993 to 1996 and acting solicitor general of the United States from 1996 to 1997. You can follow him on Twitter @walterdellinger.

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).