He cannot be the attorney general or even acting attorney general because he was not approved for it by the senate and house, as is listed in the constitution as to checks and balances to stop the abuse of power from the executive branch.
All appointments He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Who should be fulfilling the role of the attorney general in the interim, prior to the appointment/confirmation of a replacement?
From the comments: The NLRB case the Supreme Court decided last year did not settle the issue of whether all principal officers must be confirmed by the Senate. In fact, the majority affirmed that interim, or acting appointments - such as in the case of death or resignation - may be made. Instead, they simply ruled that the statute which allows non-confirmed acting appointments also bars interim appointments of people who are ALSO nominated for Senate confirmation. .
The Constitution doesn't say anything about interim appointments, and the SC did. Can you help me understand how the part I quoted doesn't apply to the current situation?
and all other Officers of the United States, whose Appointments are not herein otherwise provided for
Again, a statute exists--and has already come before the court--that provides for interim appointments. The Supreme Court has ruled that interim appointments are permissible as long as the interim appointee is not also being submitted for confirmation for permanent appointment. If the people whose job it is to interpret the Constitution have decided that interim appointments are legal and constitutional, who are we to say otherwise?
The vacancy can be filled during the recess of congress, but it must be filled by a person such as Rosenstein who has already been approved by congress for his current position.
It’s a really interesting question and I’m not sure which view is correct. Sounds from my reading that it Is unconstitutional but I’ve now heard several constitutional lawyers debate this issue without a clear consensus.
It doesn't say just that vancancies can be filled during interim. They never settled that part. The constitution says it must be a person qualified( approved by congress already for their current position)
The Federal Vacancies Reform Act of 1998 says pretty clearly that if a vacancy arises in a PAS office... notwithstanding paragraph (1), [the section that would have Rosenstein fill the role] the President “may direct” a person already serving in another PAS office, or a senior employee in the relevant agency, to serve in an acting capacity instead. The decision in the NLRB case related to Lafe Solomon who was nominated for confirmation, whose nomination was then rescinded, but remained in the interim role for over two and a half years. His interim appointment (in 2010) was never an issue; it was only after he was submitted for confirmation that he was no longer eligible. Again, if nobody--including the Supreme Court--had issue with Obama appointing Solomon to an interim officer role, why is it a problem for Whitaker? What's the material difference between the two situations?
