Thursday, November 8, 2018
Trump stands a real chance of losing in court on this, and not on a 5-4 “f*** John Roberts!” ruling either. As noted, the most vocal proponent for strict compliance with the Appointments Clause on the Court is Clarence Thomas, not the more Kennedy-esque members of the conservative majority. The Court might not even reach the constitutional argument, in fact. In addition to the Vacancies Reform Act, there’s another statute specific to the DOJ that says the deputy AG — Rosenstein — takes over if there’s a vacancy in the top job. To the extent that the two statutes conflict, with Trump wanting Whitaker in under the VRA and a separate law indicating that Rosenstein should take the job, the Court might resolve the discrepancy in favor of the latter just because it’s more specific. Congress had a particular plan in mind for the DOJ so that’s the plan that should be followed. Plus, finding that the DOJ succession statute takes precedence over the VRA would allow the Court to elevate an officer who’s already been confirmed by the Senate, thus solving the Appointments Clause issues, without having to hash out the particulars of the Appointments Clause itself.
Eesh. It appears to be worse than I thought, as things often do. I suppose we'll get to see what our President is made of. Is he deep down, under all that blubber, the beating heart of love of country and his fellow citizens, or is he the fascist toddler-tyrant who will spell the end of the first American republic? Stay tuned.