Democrats at the state, local and national level are moving to challenge President Trump’s appointment of Matthew Whitaker as acting attorney general, but experts say the law isn’t clear on who can take legal action in this kind of situation.
Senate Democrats took the first step by saying they’re considering filing a lawsuit, followed by San Francisco’s Democratic city attorney, who threatened court action against the man who replaced former Attorney General Jeff Sessions atop the Justice Department, arguing that Whitaker hasn’t been confirmed by the Senate.
{mosads}Maryland Attorney General Brian Frosh (D) on Tuesday was the first to challenge the constitutionality of Whitaker’s appointment. He asked a federal court to block the acting attorney general from arguing against a state lawsuit dealing with the Affordable Care Act and protections for people with pre-existing conditions.
“The argument is he cannot act in their case as attorney general, but this would not be the strongest possible case to make this argument,” said Jonathan Turley, a George Washington University law professor and opinion contributor to The Hill.
“There’s a great rush for people to be the first to bring a challenge, but they are often not the optimal case to do so,” he said, adding that he expects the Maryland case to be one of many.
Senate Democrats face an even steeper uphill battle if they decide to pursue a lawsuit — it might not even get off the ground, according to some experts.
Stephen Vladeck, professor of Law at the University of Texas School of Law, said the Senate as an institution has to be the one to assert they were injured by Trump’s decision to appoint Whitaker.
The injury they’re likely to claim, he said, is that Trump sidestepped the advice and consent role of the Senate by naming Whitaker, previously chief of staff to Sessions at the Justice Department, as acting attorney general over Deputy Attorney General Rod Rosenstein, who was next in command.
But Senate Democrats aren’t an institution, according to Vladeck.
“Even if every Democratic senator sued, it’s not the kind of institutional injury the Supreme Court has typically required for cases like this,” he said.
Still, Democrats have had some success in the past on that front. Last year about 200 Democrats brought a lawsuit against Trump alleging he had violated the Emoluments Clause of the Constitution, which bars presidents from accepting gifts and payments from foreign governments without congressional approval.
A federal district court judge in D.C. ruled that Democrats had standing to bring the case forward despite the government’s argument that the lawmakers alone weren’t an institution. The court said it is unlikely another plaintiff would have standing. Trump has since asked the court for permission to appeal the interim ruling that allowed the case to proceed.
But things are different with Whitaker appointment.
Even though Democrats were denied their constitutional right to give advice and consent, experts say they weren’t really injured. With Republicans in control of the Senate, Democratic votes for or against his confirmation wouldn’t have mattered.
“If a big ole group of GOP senators brought suit they would have a better argument for standing because they could say, ‘Our votes have functionally been nullified. If you had gone through the Senate we would have mattered,’” said Andy Hessick, a professor at the University of North Carolina School of Law.
But if the Senate were to pass a resolution paving the way for a lawsuit, as the Republican-led House did in 2014 to challenge the Affordable Care Act, some argue that senators would have standing.
Others, however, say even then it’s not a certainty.
Tara Leigh Grove, a professor of law at William & Mary Law School, said government institutions don’t suffer any specific injuries when constitutional powers are violated.
“Institutions are the vessels through which these constitutional powers and duties flow; they are not the beneficiaries of this scheme,” she argued in a University of Pennsylvania Law Review article.
She pointed out that while the Supreme Court in 2015 upheld the Arizona legislature’s standing to sue over its right to regulate federal elections, the high court has never ruled on whether federal institutions have standing.
“The law is not clear at all,” she said.
Sen. Dianne Feinstein (D-Calif.), the ranking member on the Senate Judiciary Committee, is now calling for a hearing into the lawfulness of Whitaker’s command.
A source close to the Judiciary Committee said a lawsuit is something Democrats are looking into, but they’re still in the beginning stages of research and discussion.
Many legal scholars agree it was unconstitutional for Trump to appoint Whitaker to the interim role after forcing Sessions to resign, but there’s less consensus over who has standing to bring a formidable challenge in court.
In a New York Times opinion piece last week co-written by Neal Katyal, who served as acting solicitor general under former President Obama, and George Conway III, a Washington attorney, the authors said Trump’s move “defied one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.”
They and legal experts said the president’s move was illegal because Whitaker has never been confirmed by the Senate, a requirement of principal officers in an administration.
“He has now been vested with the law enforcement authority of the entire United States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys,” Katyal and Conway wrote.
Trump has defended his selection, calling Whitaker a “very well-respected man.” On Tuesday, CNN reported the Justice Department’s Office of Legal Counsel is expected to release an opinion defending his appointment.
Court watchers say there will be ample opportunities for private citizens to challenge Whitaker’s appointment through agency actions, a situation they say the administration could easily have avoided.
“It’s baffling why Whitaker’s appointment is critical to the White House when it raises so many difficult questions and it’s likely to cause difficulties for the Department of Justice in an array of difficult cases,” Turley said. “It’s baffling why they wouldn’t go with Rosenstein or the solicitor general.”