The legal challenge prompted the DOJ to release a memo providing legal justification for Whitaker to serve as acting attorney general.
DOJ’s legal justifications
According to the DOJ, Whitaker’s designation is consistent with the plain terms of the Vacancies Reforms Act. The agency noted that its “organic statute provides that the Deputy Attorney General (or others) may be Acting Attorney General in the case of a vacancy. However, it “does not displace the President’s authority to use the Vacancies Reform Act as alternative.”
Additionally, the Justice Department said Whitaker’s designation is consistent with the Appointments Clause of the U.S. Constitution since it is temporary. The agency noted that Presidents before 1860 appointed non-Senate confirmed persons to serve temporarily on high offices as Secretary of State and other Cabinet positions. In 1866, a “non-Senate-confirmed Assistant Attorney General served as Acting Attorney General.”
